Carers Rights

With Carers Rights Day almost upon us and 5 million people (that is 1 in every 7 of the workforce) juggle caring responsibilities with work, this article seeks to remind those employed carers of their rights in the workplace.

Your employment rights come from 2 sources - statute and your contract. This article pays particular attention to your statutory rights (so you have these rights even if you do not have a written contract of employment). Your contract of employment might give you even more rights and a number of organisations do have a carers policy or a carers charter so this is definitely worth investigating.

Who is a carer?

Essentially, you are a carer if you look after a child, relative, partner, friend or neighbour who needs help because of their age, an illness or disability. Many carers don't think of themselves as carers, describing themselves as 'just' the 'parent', the 'partner' or as 'family'.

Do I have to tell my employer that I am a carer?

This is up to you and you do not have to tell your employer about your caring obligations if you do not want to. Some employees worry that they might be stereotyped or in some way treated differently if they tell their employer about their caring responsibilities but if your employer does not know about your caring role, they will not be able to support you. You are entitled to have this information kept confidential if you would like that to be the case but it is usually sensible to agree that your Line Manager can be informed about your caring responsibilities.

Can I change my working hours?

If you are an employee and you have worked for your employer for at least 26 weeks, you have the statutory right to request flexible working. This means that you can ask to change your hours of work (so maybe working part time, compressed hours, term time hours or annualised hours), or where you work (so you might be able to work from home some of the time). You can only make one application in any 12 month period.

You need to make your request in writing and say that it is a flexible working request. You also need to set out the new working arrangements that you would like, when you would like these to start, how they might impact on the business and how your employer might be able to overcome these. If you have made an application before, you must say when you made this application.

Your employer has a duty to consider your request but this does not mean that they have to grant it. Your employer may refuse your request if they have a business reason to do so. You have the right of appeal against any decision to refuse your request.

Remember to check your employer's flexible working policy as the above sets out the statutory regime only and your employer may operate a more generous flexible working policy.

Can I take time off work?

There is no right to 'carers leave'. As a carer, you have the same rights to annual leave as any other employee (so at least 5.6 weeks each year for full time staff). If the stresses of caring affects your own health then you may take a period of sick leave. Taking sick leave may affect your pay (you may only be entitled to Statutory Sick Pay rather than your usual salary) and if you take a prolonged period of sick leave this may mean that your employer takes action against you under their long term ill health procedure which could ultimately result in the termination of your employment.

To avoid this situation, some employers might offer some form of special leave or a career break. You will need to check your employer's policies to see if they offer this as there is no express legal obligation for them to offer this type of leave. If they do not routinely offer this as an option, you can still approach your employer and ask if it is something that they would be prepared to consider (it might be that your employer has not had to do this before). Such periods of leave are usually unpaid but can be useful to cover a period of particularly intense care (such as where a child is leaving school, a person who you care for is coming to live with you or a relative suffers an illness which means that you now find yourself as the primary care-giver).

If you care for a child and you have one years' continuous service with your employer, you may be entitled parental leave. Parental leave entitlement is 18 weeks per child (per parent) and is to be taken before the child reaches the age of 18. You must use the leave to care for the child and the leave is unpaid.

The default statutory scheme says that the leave can only be taken in blocks of one week (although in cases where the child is disabled, you can take the leave in smaller blocks if you wish). You can take up to 4 weeks leave each year. You must make your request in writing giving at least 21 days' notice of your intention to take parental leave. Your employer can ask you for evidence of the date of birth of your child (or date of placement in cases of adoption) and they can also ask you for evidence of your responsibility for the child. Your employer can postpone your request for leave (unless it to be taken immediately after the birth of a child or placement for adoption) if there are good business reasons to do so but they must allow you to take the leave at another time within 6 months or before your child reaches age 18 if that is sooner.

Are carers protected from discrimination?

Being a carer is not a protected characteristic under the Equality Act 2010 so you are not automatically protected because of your carer status.

You may be protected in a different way, for example a single mother works part time because of childcare is selected for redundancy because she is unable to work in the evenings. This could be indirect sex discrimination (a women being less likely to be able to work evenings because primary responsibility for childcare is still largely provided by women).

Similarly, a single father who requests to change his hours of work from full time to part time to care for his disabled son has his request refused but a number of his female colleagues have had their requests granted, might be able to claim direct sex discrimination. He has been treated less favourably than his female colleague.

Even if a carer does not have this protection, they are protected from direct discrimination if they are treated less favourably because of their association with someone who has a protected characteristic e.g. the recipient of your care has a disability. Likewise, a carer will also be protected from harassment because of their association with someone who has a protected characteristic - for example you care for your partner who has MS (so your partner will be considered disabled) and your work colleagues make offensive remarks about your partner's MS. However, the duty to make reasonable adjustments does not apply to carers. That duty only applies to disabled workers and not to people associated with them.

Some case law examples of discrimination claims involving carers:-

Coleman v Attridge Law (2008) C303/06

Mrs C was carer for her disabled son and claimed that she was forced to resign from her job after being refused flexible working which other employees were granted. Mrs C's case was that she was targeted because she had a child with a disability, and was denied flexible work arrangements offered to her colleagues without disabled children. The European court held that discrimination laws did cover Mrs C and ultimately this lead to the concept of associative discrimination being enshrined into the Equality Act 2010.

Price v Action-Tec Limited [2013] EqLR 429

Mrs P had a degenerative back condition so was a disabled person herself. She was also a carer for her disabled husband who had leukaemia. She was dismissed for absence relating to back pain and high blood pressure. Her employer said "if I had known about your husband's illness I wouldn't have taken you on". This was found to be harassment because of her husband's disability and her dismissal was found to be discriminatory both on the grounds of her own disability and that of her husband.

Bainbridge v Atlas Ward Structures Limited ET 1800212/12

Mr B was employed under a series of short fixed term contracts which were regularly renewed. When the Company failed to renew his contract, it was found that this was because he had to take time off at short notice to care for his disabled wife and this caused an element of inconvenience to the Company. His dismissal was therefore discriminatory on the grounds of associative disability.

Graham v Simpson Print Ltd ET 2504738/2012

Mr G cared for his disabled father who had Alzheimer's disease. He told his manager but asked that his manager not inform anybody else. A flexible approach was taken to Mr G's shifts but whilst his manager was on holiday, another manager (who was unaware of Mr G's caring responsibilities) asked Mr G if he would like to work overtime. Mr G became upset and resigned claiming, amongst other things, discrimination because of his association with a disabled person. Mr G's claim was not successful, he had not been treated less favourably because of his father's condition, he had been treated the same as everyone else in relation to the offer of overtime and had actually been treated more favourably because he was allowed flexibility in his shifts.

McCorry v McKeith [2017] IRLR 253

Ms M cared for a disabled daughter and, in the months before her selection for redundancy, she was instructed by her manager to stay at home to care for her daughter. The Northern Ireland Tribunal found that her employer had dismissed her because of its view that her place was at home caring for her disabled daughter and not at work. This was discriminatory.

Macdonald v Fylde Motor Company Limited 2011 [EqLR] 660

Mr M cared for his disabled step-father in the evenings which meant that he could not work overtime. A tribunal found that his employer's persistent requests that he work overtime amounted to harassment because of his association with a disabled person, and his dismissal which was in part because of his refusal to work overtime, was also discriminatory.

What can my employer do?

Employers can consider developing a carer's policy or adapting their equal opportunities policy to expressly cover carers. Investing in good quality equality training which covers carers is particular important - especially for Line Managers. Your employer could consider offering an employee assistance programme or counselling to support carers in managing a work life blend and also ensure that they carry out appropriate risk assessments. Finally, your employer could consider other practical ways of supporting carers from periods of caring leave or a career break, through to the option of buying extra annual leave and running buddy or mentoring schemes. If you are a carer and you are experiencing a problem at work you can contact our employment team on 01603 723793.

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