• Carers’ Rights At Work – Changes in 2023

    Carers’ rights at work

    Carers UK estimates that the number of unpaid carers has risen to 10.6 million (Carers UK, Carers Week 2022 research report). This means that 1 in 5 adults in the UK are currently providing care.

    The Office for National Statistics puts the figure at 5 million:

    “In England and Wales an estimated 5.0 million usual residents aged 5 years and over provided unpaid care in 2021, this is an ASP of 9.0%, a decrease from 11.4% in 2011. The proportion of people providing 19 or less hours of unpaid care a week decreased from 7.2% in 2011 to 4.4% in 2021.”

    Whichever figure accurately represents the number of unpaid carers it clear that a significant number of inviduals undertake unpaid care and the number is increasing. The issues unpaid carers face need to taken seriously by employers.

    NHS England reports that carers are twice as likely to have poor health than those without caring responsibilities.

    ‘Working carers do have some legal rights and they are due to improve this year. With the number of unpaid carers increasing and predicted to increase further, employers may wish to go above and beyond these legal rights to support these employees and their wellbeing and to help retain them in the workforce,’ says Zoe Lagadec

    We will now run through the legal rights, likely changes to the law and steps employers can take to support carers.

    Flexible working requests

    Employees have the right, once every 12 months, to request flexible working arrangements like part-time hours or home working once they have worked for you for 26 weeks. They must provide particular information in their request. Employers need to deal with a request reasonably and in accordance with the Acas Code of Practice on flexible working requests

    The request can be turned down for one of eight broadly-worded business reasons, such as a detrimental impact on the ability to meet customer demand. You may be liable to pay up to eight weeks’ pay (currently capped at £571) if you do not follow certain procedural requirements or base a refusal on incorrect facts.

    In September 2021, the Government launched a consultation on reforming this right, including doing away with the need for 26 weeks’ service to make a request. The consultation ended on 1 December 2021 and the Employment Relations (Flexible Working) Bill  (the “Bill”) (which will implement the new flexible working legislation, when it comes into force) is due to be discussed on the floor of the House of Commons on 24 February 2023.

    Looking at the details of the Bill and the Government’s consultation response, the following changes are likely to be made to the current flexible working legislation:

    • Making the right to request flexible working a day one right: this means the current 26-week qualifying period would be scrapped and employees could make a flexible working request from day one of their employment. The Government reiterated in its response that “it is important that the legislation remains a right to request, not a right to have.”
    • Refusing flexible working requests: the consultation showed a clear divide between employer respondents (who tended to want an increased list of business reasons to refuse requests) and individual respondents (who did not). The Government concluded that it would retain the current list of eight business reasons for refusal and not make any changes to this element of the legislation.
    • Consulting with employees about their requests: the Government has concluded that it supports the approach whereby employers should discuss a statutory flexible working request with their employee if they are considering rejecting it (which is consistent with existing the Acas Code of Practice on handling flexible working requests). Therefore, we can expect this provision to be included in future amendments to flexible working legislation (and it is included in the Bill).
    • A more responsive process for making and administering requests: currently only one request can be made in any 12-month period, and employers must respond within three months. The Government’s conclusion on this (as reflected in the Bill) is that employees should be able to make more than one request within a 12-month period (there was a general consensus on permitting two requests in any 12-month period), and that employers should respond to requests more quickly (a two-month timeframe was stated by the Government as standard).
    • Employment protections: during the consultation period, a number of organisations suggested that the existing requirement for the employee to set out how the effects of their flexible working request might be dealt with by the employer could lead to unfair treatment, and in some cases, indirect discrimination. The Government has agreed with this and so the Bill removes the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer.
    • Requesting a temporary arrangement and informal flexibility: the majority of respondents were not aware that it is possible under the existing legislative framework to make a time-limited flexible working request. The Government has said that it will issue a call for evidence on this subject in due course and so there is no indication at this stage of how these less-formalised types of flexibility requests might look in the future.

    As confirmed in the Government’s press release, workers will “have a greater say over when, where, and how they work under new Government plans to make flexible working the default”. This will represent an important cultural shift, making flexible working the default arrangement and potentially advance the working lives of many.

    Right to time off for dependants

    Employees are allowed to take unpaid time off work to deal with care arrangements for a dependant in specific circumstances, such as where existing care arrangements fall through, or a dependant is injured. Only a reasonable amount of time off is allowed. Case law suggests that employment tribunals see a reasonable amount of time as a day or two. If the employee suffers a detriment, such as being given a warning or being dismissed for exercising this right, they can bring an employment tribunal claim.

    Following consultation in 2020, the Government announced in September 2021 that it would introduce the right for carers to take one week’s unpaid leave for dependants. The Carer’s Leave Bill giving effect to the rights discussed in the consultation is currently making its way through the House of Lords.

    The Carer’s Leave Bill will introduce a new and highly flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care.

    Importantly, Carers’ Leave will be available to eligible employees from the first day of their employment, meaning unpaid carers will be supported regardless of how long they’ve worked with their employer. Employees will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for, ensuring a smoother process for both businesses and their employees. Employees taking their carer’s leave entitlement will be subject to the same employment protections that are associated with other forms of family related leave, meaning they will be protected from dismissal or any detriment, as a result of having taken time off.

    Protection from disability discrimination

    Carers are protected from being treated less favourably because of the disability of a person they care for. For example, a tribunal found that an employer directly discriminated against an employee by dismissing him, seemingly out of the blue, after he told a colleague that he would be taking on more caring responsibilities for his disabled daughter.

    Employees are also protected from being harassed by a colleague because they care for, or are friends with, a disabled person. Employers can be liable to pay the damages awarded for this harassment.

    What about reasonable adjustments?

    Employers do not have to go so far as to make reasonable adjustments, such as changing an employee’s working hours to accommodate the needs of their disabled dependant. You only need to make reasonable adjustments to accommodate your employee’s disability. Having said that, employees in similar circumstances might be able to bring an indirect disability discrimination claim. We recommend getting in touch for advice if, for example, an employee says that it is difficult to keep to their working arrangements because of caring responsibilities.

    Sex discrimination

    Women are more likely to be carers than men. Female carers may be able to bring a claim for indirect sex discrimination if you insist on particular working arrangements. In England, women aged between 55 to 59 years provided the most unpaid care (19.9%). Men aged between 60 and 64 years were most likely to provide unpaid care (13.0%) according to Carers UK.

    Supporting carers

    There are a number of things employers can do to support carers who often need to respond quickly to changing circumstances. You can set these down in a carers’ policy. Some of these may become a legal requirement in the near future. These include:

    • extending the right to request flexible working to all employees from day one;
    • allowing more than one request for flexible working per year;
    • quick responses to requests for flexible working; and
    • compassionate leave for longer periods, for example to care for someone recovering from surgery.

    How we can help

    We can draw up a policy that extends support for carers. If your business cannot accommodate the impact of your employee’s caring responsibilities, we can help ensure you act lawfully. Please contact Zoe on 0203 858 7965 or email zoe@mulberryssolicitors.com.  Mulberry’s has offices in Brighton and London.

    This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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