Employment Law Family Rights Part 3: Carer’s Leave and Flexible Working

In this third and final blog on the developments in family-related rights, we explore the introduction of the Carer’s Leave Regulations 2024 and the Flexible Working (Amendment) Regulations 2023, and their impact on employers and their employees.

Read part one here and read part two here.

Carer’s Leave

Effective from April 6, 2024, employees will have a statutory right to take one week of unpaid leave, annually, for caregiving purposes. This right applies to all eligible employees within the UK from day one of employment. To qualify for carer’s leave, an employee must have a dependant requiring long-term care, seek to be absent from work to provide or arrange care for said dependant, and not exceed the one-week entitlement within a 12-month period.

A dependent, as defined for this purpose, includes a spouse, civil partner, child, or parent of the employee, residing in the same household or reasonably relying on the employee for care. A “long-term care need” encompasses illnesses, injuries (both physical or mental) necessitating care for over three months, disabilities under the Equality Act 2010, or health issues related to aging.

Employees are granted the right to take at least one week of leave within a 12-month period to care for a dependent with long-term needs. Carer’s leave can be taken in increments of half or full days and does not need to be taken on consecutive days. Employees are not required to provide evidence for leave requests, and employers cannot demand it. The entitlement to one week of leave is capped, regardless of the number of dependents an employee has.

The key procedural requirements are that (i) employees must take leave that follows their usual working pattern and (ii) are required to give advance notice to their employer, not necessarily in writing, about their intention to take carer’s leave, with the notice period being twice the length of the leave requested or three days, whichever is longer.

Employers can choose to waive the written notice requirement if the employee is eligible for carer’s leave.

While employers cannot outright refuse leave requests, they can postpone them if it would disrupt business operations. However, the postponed leave must be rescheduled within one month of the original request, with employers providing reasons for the postponement and offering revised leave dates. Employers must understand and be sensitive to employees’ circumstances, especially when caregiving responsibilities necessitate sudden leave requests.

An employer cannot subject the employee to any form of disadvantage or dismissal for taking, attempting to take, or benefiting from carer’s leave, or simply because the employer suspected the employee might take such leave.

In light of the incoming regulations, employers should:

1. Review or establish policies to incorporate the new entitlement.
2. Implement a record-keeping system to monitor the utilisation of carer’s leave by employees.
3. Educate people managers about the introduction of the new entitlement. Additionally, highlight the importance of handling discussions related to carer’s leave with sensitivity, considering the potentially delicate nature of the topic.

Certain employers may opt to enhance these newly established rights by considering provisions for remuneration during the leave period, or by extending the duration of unpaid time off available to employees.

Flexible working

In our legal update in August 2023, we highlighted the passing of The Employment Relations (Flexible Working) Act 2023, which received royal assent on July 20, 2023. The UK has long championed flexible working, reflecting a growing desire for work-life balance and adaptable schedules. Flexible working enhances employee well-being, work-life balance, engagement, and productivity, offering greater control over work schedules and environments. A recent survey from ACAS has found that 30% of employers have seen an increase in staff working from home in the last 12 months alone.

Effective from April 6, 2024, employees will have the right to request flexible working arrangements from day one of their employment, eliminating the existing prerequisite of a minimum of 26 weeks’ service for employees to initiate such requests. The Act defines a statutory request as one that seeks modifications to an employee’s terms and conditions regarding their work hours, schedule, or workplace.

Published in January of this year, the ACAS Code of Practice on the handling of flexible working (see here) underscores the importance of meaningful engagement and collaborative exploration of alternatives when an employee’s preferred arrangement proves impractical, highlighting the increased responsibility on employers to compromise. The Code provides guidance for both employers and employees concerning their legal entitlements, obligations, and best practices in initiating and managing statutory requests for flexible working.

The key procedural aspects that the new provisions provide are:

• The employee’s request must be in writing and must stipulate that they are making a statutory flexible working request for it to count as one.
• The employer has an obligation to deal with the request in a reasonable manner.
• Employers will be required to address these requests within a shorter timeframe of two months, down from the previous three-month period.
• Employees will no longer be required to outline the potential impact of their proposed changes on the employer or suggest methods for mitigating any such effects.
• The new changes will require the employer to consult the employee before refusing a statutory request for flexible working.
• The employer must inform the employee of the outcome. Any refusal can only be on the basis of specific grounds.
• Employees now have the right to submit two requests for flexible working within a 12-month timeframe, doubling the previous allowance of one request.
• The request will be treated as withdrawn if the employee fails to attend any meeting regarding their request without good reason.

Flexible working requests can only be refused for one or more of eight permitted business reasons listed in the legislation which we set out in our previous blog which can be accessed here.

The ACAS code underscores the importance of having a transparent policy and procedure in place for handling such requests, facilitating clarity for all parties involved. Employees can only be awarded a maximum of eight weeks’ pay for breach of the statutory flexible working regime and if they are dismissed for making a request, they would have a claim for automatic unfair dismissal.

Further, the existing legal risks of claims remains; these could include claims by female employees for indirect sex discrimination if they have made a flexible working request for childcare reasons, or where such a refusal amounts to a refusal to make a reasonable adjustment under the Equality Act 2010 for a disabled employee.

Should you have any queries in relation to the developments and their potential effect on your business and/or employment rights, or indeed any other employment law related query, please contact Linky Trott or any other member of our Employment Team.

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