Are Carers Protected By Employment Law

Are carers protected by employment law?

There are 5.7 million carers looking after an ill, elderly or disabled family member or friend in the UK (Source: Census 2021 data for England and Wales).

Helen Walker, chief executive at Carers UK, said: “Without unpaid carers, our health and social care systems would collapse”.

You might be caring for a child with a disability, an aging parent, or a partner who was immobilised in an accident. You’re still trying to work to bring in the money and pay the bills, but you also have to look after your loved one. And, sometimes, the two responsibilities clash.

Family and friends in crisis often have to take priority over work. But you also have to keep your employer happy. It’s a tricky and stressful balance.

Hope is at hand?

The 2024 ‘State of Caring’ survey by Carers.uk revealed that:

55% of respondents said they need the general public to better understand and recognise the role of carers
24% faced difficulties in meeting their employer’s requirements due to their caring responsibilities
22% of carers had experienced unfair or unfavourable treatment at work
19% of respondents had been treated unfairly or unfavourably by the public

The Equality Act 2010 already protects people who are discriminated against by being associated with someone who has a protected characteristic – its called ‘associative discrimination’.

But not many people know about it, so the charity is calling for the Government to making caring a protected characteristic in itself. They want public bodies to have new responsibilities to promote equality for carers and ensure positive policies and practices are in place.

Ensuring the protected characteristics are well-known would help demonstrate that carers are valued by society, transform the way that caring is perceived, boost carers’ rights, protect them from harassment and discrimination, and raise the profile of carers. Carers could then feel confident asking for what they need to balance work and care, and to challenge unfair treatment.

Case study

Cases of associative discrimination are rare. But it’s not impossible to make a claim and win! To make the point, it can be useful to look at a real-life example.

In 2015, Mr Graham started working for software company Gravity Supply Chain Solutions as head of business partnerships, initially at its Hong Kong office.

In 2019, he and his family were about to relocate to the US to lead the American sales operation, however, his wife was diagnosed with stage 4 breast cancer at around the same time.

The CEO, Mr Parker, suggested Mr Graham return to the UK to support his wife’s treatment. So, from April 2021, he moved to the UK branch. He was told he’d be able to work flexibly to meet the changing needs of his wife’s care and support their son. However, the company made no adjustments for him. In order to manage the demands of multiple time zones, Mr Graham was often working from 6am until the early hours of the morning.

Mrs Graham’s health deteriorated further during the summer of 2021. By August, Mr Graham messaged Mr Parker explaining the risk to his health from lack of sleep.

Mr Parker suggested he took some time off, so Mr Graham booked annual leave which was followed by sick leave. During this time, his access to work emails and computer network was stopped.

One month in, he was told he was didn’t need to come back to the business, but if he did, he would be demoted to a new role that restricted his remit to Europe and his hours to 9am to 6:30pm. It could be done full-time or part-time, but would mean a pay cut of around 35%. The excuse was so Mr Graham could focus on himself and his family.

In addition, his sick pay was reduced to statutory sick pay (SSP), despite his contract saying his first 120 days’ sick leave should be on full pay. Mr Parker claimed full sick pay was made on a “discretionary basis”. This meant Mr Graham’s September pay was reduced by around £3,000.

On 1 October, Mr Graham attempted to return to work on full pay – but his access to work emails and the computer network was not reinstated.

On 5 October, Mr Parker advised that Mr Graham’s options were to take the reduced role or to leave with six months “on garden leave”.

Mr Graham was told to stop work now and give his decision by 11 October.

On 9 October, he raised a grievance about the breach of contract:

Paying SSP when his contract allowed for more
Making unlawful deductions from wages
Breaching policy and procedures by failing to do a formal consultation and attempting to unilaterally change the terms of his contract through bullying and harassment

The company never addressed the grievance. In December, they terminated Mr Graham’s contract telling him he would be on garden leave until May 2022.

They claimed:

He breached the mutual term of trust and confidence by the way he requested 120 days’ sick pay
The need for his current position had ceased so his role was redundant
They offered him an alternative role which he refused on many occasions

Mr Graham took the company to the employment tribunal, claiming for direct disability discrimination and unfair dismissal.

His claims succeeded, and he was awarded a total of nearly £90K, made up of:

Direct disability discrimination: £66,900
Unfair dismissal compensation: £10,400
Untaken holiday pay: £12,600

The tribunal concluded that Mrs Graham’s disability was a “material and significant reason” for the respondent’s actions, and that there was no suggestion that Mr Graham had been performing badly in his role so he didn’t deserve demotion or dismissal.

What this means to you

It’s likely that your employer is aware of the law around direct discrimination, but the law around discrimination by association is not always covered in equality training for employers or their employees.

Carers.uk say it’s critical that employers have clear guidelines and clarity on their obligations.

If you’re a carer and your employer treats you badly, you might be able to make a claim. Give us a call on 0808 168 7288 to talk through your situation, and we’ll advise how we can help.

Are Carers Protected By Employment Law?