The current Employment Relations Act 1999 gives employees the right to reasonable time off for dependants in the event of particular, unforeseen circumstances. There is no qualifying employment service required for entitlement, but the time off is unpaid.

With the Carer’s Leave Act 2023 coming into effect from 6 April 2024, we’re exploring what the difference is between carer’s leave and time off for dependants and what the new legislation means for businesses.

Time off for a dependant

Under the Employment Relations Act 1999, a dependant of an employee is classified as someone who is one of the following: a spouse or partner; a child; a parent; another family member who lives with the employee; and anyone else who is reliant on the employee in emergency situations.

The right to reasonable time off for the prescribed dependants is dependent on particular circumstances, which must always be unforeseen, such as in event of a dependant’s death, where a provision of care needs to be made, a dependant falls ill etc. In determining whether the leave is ‘necessary’, the following factors should be considered: is anyone else available to help in the circumstances and the nature of the incident and the relationship of the employee with the dependant. In Qua v John Ford Morrison Solicitors [2003], an employee used dependant leave to take time off to care for her child who had an ongoing medical condition. However, the employment tribunal ruled that this was the wrong use of the leave as it was not being used for an emergency.

The entitlement period for time off is defined, vaguely, as “reasonable”. The employer can’t take into the account the needs of the business and any disruption that the employee’s time off might case, when making an assessment. However, where the employee has taken time off to care for dependants before, the employer can consider the frequency, length of absence, how the employer was previously informed and when the time off was taken. There are only two circumstances in which refusal to allow time off can be made.

Carer’s Leave Act 2023

These regulations introduce a new right for employees (without a minimum service requirement) to book time off work to provide or arrange care for a dependant with a long-term care need. The term dependant generally remains the same, but the long-term care need is defined as: having an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months; has a disability (for the purposes of the Equality Act 2010), or; care is required due to old age. Worth noting that “old age” has not yet been defined!

Time off needs to be taken in half or full days, up to and including taking a block of a whole weeks’ leave at once (which is the maximum length of time in a 52-week period). The notice period to be given by an employee should always be the longer of the following: double the length of the time intended to be taken or a period of three days. This period of leave is taken as unpaid, though employers can at their discretion offer enhanced pay for this, if they wish to do so – though no statutory entitlement will be awarded.

Employees taking Carer’s Leave will have employment protections associated with other forms of family related leave.

What’s the difference between the two?

Although there are some similarities in terms of dependant definition, the two types of leave are intended to be used in different ways. In short, time off for dependants enables employees to take time off work at short or no notice to deal with a dependant in the case of an emergency, whereas carer’s leave enables those with caring responsibilities to book time off work in advance to provide care to, or arrange care for, a dependant with a long-term care need.The long-term care need and the notice periods are the big differences here.

What does the Carer’s Leave Act mean for my businesses?

Do your policies reflect the entitlement to new Carer’s Leave? If not, it’s time to start thinking about how you can differentiate the two entitlements for your staff, what sort of process you want employees to follow when requesting and taking leave, and whether you intend to offer enhanced pay for time taken.

Employees who take Carer’s Leave are protected from suffering detriment, discrimination ,or dismissal (incl. redundancy) because of requesting this type of leave.Managers and HR professionals in your business should be aware of this. If any of the above inadvertently happened, you may quickly find yourselves at the Employment Tribunal.

As an employer you aren’t allowed to insist than an employee provides evidence that they qualify for carer’s leave. Therefore, it’d be best practice to make it clear to your employees that any suspected misuse of this particular leave will be investigated and could potentially lead to disciplinary actions if sufficient evidence of misuse is found.

If you need help preparing or updating your policies to comply with the newCarer’s Leave Regulations or support investigating a misuse of leave, get in touch with the team.

‍