The pressures on workers with family carer responsibilities has never been higher, and the need for employers to acknowledge and support those workers never more urgent. The June 2020 report of the Chartered Institute of Professional Development (CIPD), in conjunction with the University of Sheffield, “Supporting working carers”, noted that the global pandemic had drawn to everyone’s attention “the support needs of older people and those with chronic health conditions and disabilities” and put into sharp focus the crucial importance of working carers’ dual role. It also highlighted the importance of lifting the burden on those carer workers as far as possible. Merrill April and Louise O’Connor discuss below some of the key protections and support being considered by Government and employers for care-giving workers in the UK.
Whilst the work of unpaid carers may have previously been acknowledged to a degree, one effect of the pandemic is that it has shone a spotlight on the valuable and significant work that those individuals do and the need to provide them with greater support. This group of workers have suffered disproportionately during the pandemic and are more likely to have lost their jobs, had their hours of work reduced and to have assumed an unequal share of caring and household responsibilities.
Research conducted by Carers UK last year, released for Carers Week 2020, estimated that 4.5 million people in the UK became unpaid carers during the Coronavirus pandemic, the majority of whom were required to fulfil these caring responsibilities alongside their paid work. This research also showed that women were more likely than men to be unpaid carers, with the associated adverse implications upon the careers and earning potential of those women being self-evident.
Employees in the UK who are also required to assume duties as unpaid carers have various statutory protections available to them, in the form of leave entitlements (whether paid or unpaid), parental entitlements and protection from unfavourable treatment, many of which may assist caregivers in discharging their duties as an employee, as well as fulfilling their caring obligations. However, this is a patchwork of protection only and there are gaps that need to be filled if carers are themselves to be cared for and not discriminated against. There is not yet an explicit right to carers’ leave for such employees, although, as detailed below, proposals for reform in this area are underway. Being a Carer is not in itself a protected characteristic.
Patchwork of Existing Rights
In the UK, employees have the right to take a “reasonable” amount of unpaid time off work to take “necessary” action to deal with particular situations affecting their dependants. The legislative provisions specifically provide for situations where an employee is required to take time off “because of the unexpected disruption or termination of arrangements for the care of a dependant”, a situation which will undoubtedly have affected many working parents over the past year.
While the right has been expressed as one which enables an employee to take time off to “provide assistance”, this does not necessarily equate to the employee being permitted to take time off to care for a child or dependant themselves; rather, it is intended to afford the employee the opportunity to make longer-term arrangements for the care of a dependant, although this is unlikely to have been a feasible option during the pandemic.
Employee parents also have an entitlement to unpaid parental leave to look after their child’s welfare, a broadly defined provision, which includes looking at new schools, settling children into new childcare arrangements or simply allowing parents to spend more time with their children. Each eligible parent is entitled to take up to 18 weeks’ leave per child, until they reach the age of 18, with a maximum of 4 weeks per child that can be taken in any one year.
The existing right for all qualifying employees to request a flexible working pattern, now has to be viewed in the light of the flexibility some employers were able to provide to parents and others at short notice on an informal basis during the pandemic- especially when schools were closed and there was a need for parents to become teachers themselves or to assist their children with accessing on-line teaching provided by schools. Whilst the grounds on which an employer can reject a flexible work request have not changed and there is still no legal right to work flexibly, the fact that some (particularly office based) employers could deal with client needs, quality and performance issues and the reallocation of tasks across the workforce will make it much more difficult for such employers to use those same grounds going forward to reject similar requests. This may well lead to additional claims in the tribunal coupled with much more costly sex discrimination claims.
A New Right to Carer’s Leave
In their 2019 election manifesto, the Conservative Party pledged to introduce an entitlement to one week’s leave per year for unpaid carers explicitly recognising that the majority of such carers were women. The consultation, which ran for approximately six months, closed in August last year; however, the outcome has not yet been published.
The Government’s consultation proposed that the definition for Carer’s Leave would broadly mirror that of dependant relationships contained in the right to time off for dependants, meaning a person could take Carer’s Leave to care for a spouse or civil partner, a child, a parent, someone living in the same household as the employee (other than a tenant), or someone else who reasonably relies on the employee for care.
The Government also proposed to limit the ability to access Carer’s Leave to those employees who are caring for individuals with physical or mental health problems, disabilities, or issues related to old age; furthermore, the care need in question should be likely to last for a “longer period of time”, suggested as being six months or a year. This proposal evidently would not encompass those who have general childcare responsibilities.
In their response to the consultation, Carers UK welcomed the Government’s proposal to introduce the right to one week of unpaid Carer’s Leave; but argued that it would be more effective if such leave were paid – ideally by the Government – and extended to two weeks, with an additional entitlement to take a longer period of unpaid leave for up to six months. The organisation pointed out that Carer’s Leave would have positive benefits for those whose rights were otherwise limited, such as parents of disabled children, who lose important parental leave rights once their child reaches 18.
Whilst the Government proposals, in their current form, are reasonably modest, they would undoubtedly have a significantly positive effect on employees who have had to assume or increase their caring responsibilities as a result of the pandemic.
Supportive employers can in the meantime introduce their own enhanced Carer policies and benefits, including granting paid or unpaid carer’s leave, allowing flexi time or flexible working opportunities, offering career breaks or sabbaticals, providing access to counselling or wellbeing services, and creating a supportive workplace culture where staff feel comfortable talking about their caring responsibilities. The CIPD Report highlighted that many employees felt that the lack of awareness regarding available workplace support and how it may be accessed was a significant barrier which prevented them from discussing their caring responsibilities with their employer.
Future Carer Issues to Watch out for
A major concern for many employees with caring responsibilities is the potential impact their caring roles may have upon them in any redundancy process. Potentially fair selection criteria, which an employer may consider when considering a pool of employees for potential redundancy, can include performance and ability, length of service, attendance records and disciplinary records. What should an employer do if they believe that the pandemic may have affected an employee’s job performance and how can they lawfully score such an employee for the purposes of redundancy selection criteria? When applying attendance records as a selection criterion, employers should discount family-friendly leave, as well as considering the period over which attendance is assessed. Selection criteria which do not carefully consider, and adjust for, extraneous factors which have impacted job performance since March 2020 could, arguably, be subject to challenge on grounds of indirect sex or age discrimination, or associative disability discrimination, given that sex, age and disability are protected characteristics. Under the Equality Act 2010, discrimination against a person because of their association with another person who has a protected characteristic is unlawful, meaning that employees are protected from direct discrimination (such as dismissal) or harassment as a result of being associated with a disabled person. Whilst this particular area of the law is still evolving, many commentators have speculated that it will become more relevant in the near future, with the increased number of employees who are required to care for elderly parents also bringing the issue of indirect age discrimination into the spotlight.
Employers should also ensure that they support and do not unfairly penalise their care-giving workers, include ensuring that they fairly take account of those workers’ competing responsibilities and pressures over the last year in undertaking their performance appraisals, assessing pay reviews and in considering them for promotion and training opportunities, amongst others. Ensuring that there is no bullying or harassment of workers with family care-giving responsibilities, who may be unfairly perceived as less committed, is also essential.
Employers should also keep an eye out for signs that individual workers may be suffering from physical or mental ill-health issues, as a result of the combined long-term effects of their dual work and caring responsibilities – including disengagement, increased sickness absence and even potential misconduct, in the form of behavioural issues, being among the warning signs. Proactive communication, a health and safety risk assessment, access to counselling, and obtaining an Occupational Health (OHP) assessment and recommendations on how to alleviate the pressure for the individual worker with carer responsibilities, are key for employers to support those workers and minimize related risk.
Despite the grave and genuine concerns about the damage which Coronavirus has already inflicted upon employees with caring responsibilities, and the potential impact it will have upon them in the future, there remains, nonetheless, an optimism that it may represent an opportunity to increase the employer-driven and legal protections available to caregivers.
Employers with a talent shortage will also not be unaware of the competitive advantage that they could gain by recognising the need for flexibility, to keep valued employees productively in the workplace and not lose mothers and older, experienced workers, by forcing them to make a choice between their careers and their caring responsibilities.
Many employers have suffered too in the pandemic and further employee rights, even if unpaid, may seem untimely. However, if the threat of increased discrimination claims is not enough to force employers to look seriously at their risk and exposure, the success of many informal and short-term flexible work arrangements and the huge goodwill generated by such initiatives, should encourage employers to make bold decisions going forward. It seems that in the short-term many employers must embrace hybrid working at least for sections of their workforce; if they can also embrace more flexible work for carers, they can play their part in society, to overcome some of the detriment caused to women and other carers over the last 12 months.
If you are an employer and would like to discuss the obligations and considerations for your employees or workers with caring responsibilities, you have any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Partner Merrill April and Associate Louise O’Connor, both of whom specialise in employment and partnership issues for multinational employers, senior executives, partnerships and partners.