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Taking care of the carer

04 August 2023

There's no doubt that unpaid carers play an important role in our society. It’s a form of selfless service to those in need. Yet, carers often find themselves juggling their carer responsibilities alongside work, without meaningful support and adjustments in the workplace. 

The UK have taken a step in the right direction with the introduction of the Carer's Leave Act. Set to take effect in April 2024, the Carer's Leave Act will afford unpaid carers one week of 'no questions asked' unpaid leave per year, for carer responsibilities.

Guernsey's Prevention of Discrimination (Guernsey) Ordinance, 2022 (the "Ordinance") is all set to introduce carer status as a stand-alone protected ground, come 1 October 2023. Quite the opportune time for a high-level overview of the UK position on unpaid carers' existing and incoming statutory employment rights. The UK position is a persuasive indicator of how unpaid carers' employment rights and in turn, the prohibition of discrimination based on carer status in the workplace, may develop in Guernsey.

Unpaid carers' statutory employment entitlements in the UK

Unpaid carers may exercise the following statutory entitlements:

Request for flexible working:

Employees with 26 weeks of continuous employment have the right to make one request for flexible working within a 12-month period. An employer has 3 months within which to consider, discuss and notify the employee of the outcome of the request. This period can be extended by agreement. Notably, the right to request flexible working does not translate to a guarantee of being granted flexible working. An employer may refuse the request by reason of any of the 8 statutory business grounds, which includes consideration of the burden of the additional costs to grant the request. If refused, the expectation is that an employer will have a legitimate business reason/s.

Right to request time-off:

Employees, irrespective of their length of service, have the right to request a reasonable amount of unpaid time off to attend to certain emergencies involving a dependent.

Right to take parental leave:

Employees with at least one year of continuous employment, are entitled to 18 weeks' unpaid parental leave to care for each child under the age of 18.

Carer status does not have stand-alone protection against discrimination in the UK or for that matter, anywhere else in the world (See Guernsey and Unpaid carers below). However, the Equality Act, 2010 (the "Equality Act") extends a level of protection to unpaid carers by prohibiting discrimination against an employee by reason of their association with a disabled person. This is known as discrimination by association.

This is all well and good, but is it enough? Disabled persons have the right to reasonable adjustments in the workplace to enable them to work efficiently. Persons who are associated with disabled persons do not have the same right. If the intention is to afford carers sufficient support in the workplace, the right to reasonable adjustments in the workplace in our view, needs to extend to unpaid carers, who selflessly care for dependents with disabilities or who require long-term care.

The forthcoming unpaid Carer's Leave Act

 The Carer's Leave Act comes as a breath of fresh air and is set to allow carer's a day-one entitlement to one week of unpaid leave each year, to provide or arrange care for a dependant with a long-term care need.   A dependent of a carer is defined as including a spouse, partner, or civil partner; a child; a parent; person who lives in the same household as the employee (otherwise than by reason of being their employee, tenant, lodger, or boarder); or a person who reasonably relies on the employee for care.

A dependant of an unpaid carer has a long-term care need if they have an illness or injury which requires or is likely to require care for more than three months, have a disability for the purposes of the Equality Act, or require care because of their old age.

The finer details of this entitlement are yet to be fleshed out, but it is understood that carers will be allowed to take their leave flexibly, either in a single block week of leave or individually, as half-days or hours up to one week, provided they afford their employer notice equivalent to double the length of the intended leave plus one day.  On the flip side, employers will be able to postpone the commencement of unpaid carers' leave if it unduly disrupts operations but cannot deny an employee's request for unpaid carers leave.

Unpaid carer's wishing to avail themselves of their one week of unpaid leave will be afforded the same protections against detrimental treatment or dismissal connected to their request, that applies to other types of family related leave.

Guernsey and unpaid carers

The Ordinance will certainly put Guernsey ahead of the game by prohibiting discrimination on the stand-alone protected ground of carer status, but what will this mean in practice?

A person has carer status if they provide care or support on a continuing, regular, or frequent basis for a person with a 'disability' (as defined in the Ordinance), that they live with or are a close relative of. A close relative includes if either the carer or the disabled person is the spouse, partner, child, sibling, parent, grandchild, grandparent, or parent or child of a spouse or partner, of the other. Unlike the UK Carer's Act, there is not a specific carve out for who would fall within the definition of someone who 'lives with' an individual (i.e., the UK Carer's Act excludes anyone who is an employee, tenant, lodger, or boarder of the individual).   We would expect clarity to be provided by the States in this respect in due course.

The States of Guernsey's guidance notes to the Ordinance, which were published on 2 August 2023, sheds some light on what would constitute 'continuing, regular, or frequent care or support' and suggests that the care or support need not be permanent and could cover matters of care and support such as annual hospital visits for check-ups or a series of continuing issues that may occasionally arise.  In addition, the guidance notes indicate that there is no requirement for the care or support to be permanent. Whilst a one-off hospital appointment is unlikely to fit the 'continuously, regular or frequent' support or care requirement, if the appointment was part of a series of appointments relating to the same condition, it may meet the requirement.

In Guernsey, come 1 October 2023, employees with unpaid carer status will soon have protection from discrimination based on carer status specifically. This is a very different and a greater form of protection than that afforded to unpaid carers in the UK, who only have a claim for indirect discrimination by their association to a person with a disability.  Semantics you may say, but is it really? We think not.

In the UK, it was not until relatively recently (2020) that a claim of indirect discrimination by association specific to carer status, had success in the UK employment Tribunal case of Follows v Nationwide Building Society, which found that the employer's requirement for office attendance of for a senior manager who previously worked from home and who was also the primary carer for her disabled mother, amounted to indirect disability discrimination by association.

The Ordinance also seeks to remove the need to go around the 'back-door' to afford protection to persons associated with individuals with protected characteristics.  In that respect, it will also be introducing the stand-alone concept of direct discrimination by association. This means that individuals will no longer have to go around the 'back-door' to establish a claim of indirect associative discrimination – so long as they can establish less favourable treatment because of their association with a person with a protected characteristic, they will be protected under the Ordinance. 

In this respect, if the Follows v Nationwide Building Society case had been heard in Guernsey, Ms Follows would have had a claim for direct discrimination based on her Carer status.  If her son was also gay (another protected characteristic), for example, she would also potentially have had a claim for direct discrimination by association.

Whilst many of the statutory rights available to unpaid carers in the UK are not statutory entitlements in Guernsey, in our experience, most employers offer some of these by way of contractual entitlements.  It remains to be seen whether Guernsey will continue its upward trend and afford carers unpaid (or paid) leave, and even more so, whether it will afford all employees a statutory right to request flexible working.

At present, the guidance notes to the Ordinance indicate that there is no duty to make reasonable adjustments for employees with carer status. It will be interesting to see how this area of law develops and whether Guernsey will set an example and extend the duty to make reasonable adjustments in the workplace to employees with carer status. This may be achieved, somewhat indirectly, by introducing the right to request flexible working, so watch this space for developments in that regard.

If you require any assistance with how to support your carers in the workplace and the extent of your legal obligations as an employer, please contact Carly Parrott or Danielle Naseem.

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Location: Guernsey

Related Service: Employment Law