New year, new rights. 2024 has brought in several changes to family friendly legislation and employers will need to keep up to date with developments to flexible working, redundancy protections, paternity leave and new rights for carer’s leave and leave for neo-natal care. This article summarises the key takeaways to ensure employers start the year on the right foot.
Flexible Working
From the 6 April 2024, the right to request flexible working will become a “day one” right so an employee will no longer need to wait 26 weeks to make a request to change their working pattern, hours of work or place of work. In addition, employees will be able to make 2 requests in any 12 month period, giving them more flexibility to ask for changes as their personal circumstances evolve. This could be particularly helpful for working parents and those with caring responsibilities to respond to their family needs. Other changes introduced by the Employment Relations (Flexible Working) Act 2023 and Flexible Working (Amendment) Regulations 2023 (SI 2023/1328) are:
- a requirement for the employer to consult with the employee before refusing a flexible work request (which was already common practice under the “old regime”);
- shortened timeframe to decide on a request – now 2 months instead of 3; and
- removal of the existing requirement that the employee must explain what effect, if any, the change would have on the employer and how this would be dealt with.
ACAS Code of Practice
The ACAS Code of Practice on requests for flexible working (the “ACAS Code“) is due to come into effect in April 2024, pending final approval. The purpose of the Code is to guide employers and employees on the statutory right to request flexible working under the Employment Rights Act 1996. The Code contains useful guidance on best-practice when dealing with flexible working requests – particularly in relation to consultation and communication obligations.
Employers will need to update their flexible working policies to reflect these changes and should make relevant personnel aware of the shortened timeframe for responding to requests. Managers may need additional support to respond to requests, such as training on the ACAS Code and updated internal procedures.
New redundancy protections for pregnant women and new parents
Also expected in April 2024 are extended protections for employees returning from maternity leave, shared parental leave or adoption leave in a redundancy situation.
Currently, employees on maternity, shared parental leave or adoption leave have a right to be offered a suitable alternative role, where one is available, in a redundancy situation during their leave period. This gives them a priority over other employees that are at risk of redundancy. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (which came into force on 24 July 2023) and The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 (due to commence on 6 April 2024) will extend the period over which redundancy protection and the requirement to be offered suitable alternative roles to up to 18 months after the child’s birth/placement.
- Pregnancy / Maternity leave and Adoption leave: The protected period will commence when the employee notifies the employer of their pregnancy and will end 18 months after the child’s birth. Similarly, protection for adoption leave will increase to 18 months after the date of placement (or date of entry into Great Britain for overseas adoptions). For employees who have suffered a miscarriage, the protected period will start when the employee notifies the employer of pregnancy and will end two weeks after the end of the pregnancy for pregnancies ending before 24 weeks.
- Shared parental leave: Where an employee is taking 6 or more consecutive weeks of shared parental leave (“SPL“) the protected period is 18 months after the date of the child’s birth or placement (or date they enter Great Britain). If the SPL taken is less than 6 weeks, the protection will only apply during the period of SPL.
Note that the new redundancy protection applies to those returning from maternity, shared parental or adoption leave on or after 6 April 2024 or where the employer is notified of pregnancy after that date.
We are awaiting the Government’s guidance on implementation of the changes under the Regulations – expected in 2024. It will be important for employers to get across the new changes and start thinking about the best way to manage their redundancy processes from April of this year.
Paternity Leave
Regulations have been introduced to vary how paternity leave can be taken for both birth and adoption. The Regulations will apply where the expected week of childbirth is after 6 April 2024 and for adoption, where the expected date of placement, or expected date of entry into Great Britain, is on or after 6 April 2024. Under the Paternity Leave (Amendment) Regulations 2024:
- Paternity leave remains at a maximum of two weeks, however, the father or partner will be able to take their leave and pay as two non-consecutive blocks of one week (rather than as a single consecutive block of one or two weeks).
- The father or partner can take the leave at any time within the first year of birth/adoption (rather than within the first 8 weeks) giving them more flexibility to take their leave at a time that suits the family. However, it is worth noting that paternity leave cannot be taken after shared parental leave so fathers / partners that are considering taking shared parental leave should ensure that they take their entitlement to paternity leave first, or they will lose this entitlement.
- Shortened notice periods required for each period of leave (generally 28 days) and an ability to vary an initial notice of dates of leave on 28 days’ notice. This is intended to provide greater flexibility in response to changing family circumstances.
Employers will need to update their paternity leave policies to ensure they are compliant and may wish to consider wider communications to staff to make them aware of the changes.
Carer’s Leave
In addition to the existing right to take a reasonable amount of time off to care for a dependant (which is limited to emergencies, unexpected incidents, death, or to make long-term care arrangements), employees will have a day-one right to take unpaid carer’s leave for up to one week in a rolling 12-month period. Carer’s leave will be able to be taken in half or full days for up to one week at a time and will be available to employees to provide or arrange care for a dependant with a long-term care need. In its response to the consultation, the Government acknowledged that unpaid carers face particular challenges when juggling work and caring responsibilities. The introduction of carer’s leave recognises that there should be an ability to take leave more flexibly to meet a range of caring needs, however, it should be noted that carer’s leave in unpaid under the statutory regime.
The definition of dependants broadly follows that for time off for dependants and includes:
- a spouse, civil partner, child or parent of the employee;
- those who live in the same household as the employee (excluding boarders, employees or lodgers of the employee); or
- those who reasonably rely on the employee to provide or arrange care.
Employers will not be permitted to decline a request but may postpone the period of carer’s leave by up to one month in prescribed circumstances.
The Carer’s Leave Act 2023 and Carer’s Leave Regulations 2024 are expected to come into force on 6 April 2024 and employers should consider updating their family friendly policies to include the carer’s leave entitlement. Issues related to carer’s leave will need to be treated sensitively, bearing in mind the protections employees will have from dismissal or detriment as a result of taking the leave.
Neonatal Care
Currently, parents are required to use holiday or a form of parental leave to look after a baby who requires neonatal care. Whilst not expected to come into force until April 2025, the Neonatal Care (Leave and Pay) Act 2023 will provide for a new right to statutory neonatal leave and pay from day 1 of employment. The reforms are intended to give parents more time to provide critical care for their baby without worrying about using other forms of paid/unpaid leave, or having to return to work whilst their baby is still receiving hospital care.
The amount of leave is expected to be up to 12 weeks (with a minimum entitlement of one week), depending on the time the baby is required to spend in hospital. Payment is expected to be at the statutory prescribed rate or 90% of the employee’s average weekly earnings, whichever is lower.
It is anticipated that several additional pieces of statute will accompany the Act to set out in more detail the operation of the entitlement, pay rates and presumably, the relevant notice and evidence requirements. For now, it is a watch this space…
If you would like assistance updating any of your HR policies, please contact a member of our team.