Sun 14 Jan 2024

Multiple family friendly rights in force from 6 April

A look at the changes coming into force in April relating to flexible working, carer's leave, paternity leave and extended redundancy protection for pregnant employees and new parents.

Day 1 right to request flexible working

Currently the Flexible Working Regulations 2014 require an employee to have been continuously employed for 26 weeks before being entitled to make a flexible working request. The Flexible Working (Amendment) Regulations 2023 remove that requirement, making the right to request a "day 1" right with effect from 6 April 2024. 

Although changes are also to be made to the current right to request flexible working regime via the Employment Relations (Flexible Working) Act 2023 there is currently no definitive date for those changes to take effect.  However, it is likely that these changes will also come into force in April 2024.  

ACAS have also recently announced that an updated Code of Practice on flexible working will be published in 2024.

Protection from redundancy for pregnant women and new parents

The draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 ("the draft Leave Regulations") have been laid before Parliament.  When in force, the draft Leave Regulations will extend existing protections that apply when redundancy situations arise while an employee is on maternity, adoption or shared parental leave.

Specifically, the extended rights are as follows:-

  • The "protected period" will cover pregnancy and continue for a period of 18 months from the first day of the estimated week of childbirth.  That date can be changed to the exact date of childbirth via notice given to the employer prior to the end of maternity leave.
  • The protected period for adoption will extend to 18 months from the date of placement for adoption.
  • For parents taking shared parental leave who have not taken maternity or adoption leave, the protected period also extends to 18 months from birth.  However, for the extended protection to apply for a period after the shared parental leave has ended, a parent must meet a minimum 6 week threshold of continuous leave.  Where the 6 week threshold is not met, the redundancy protection only applies during the shared parental leave.

As currently drafted, the extension of protection to cover pregnancy applies where the employer is notified of a pregnancy on or after 6 April 2024.  It applies to any maternity or adoption leave ending on or after 6 April 2024, and to any shared parental leave starting on or after 6 April 2024.

Carer's leave

The draft Carer’s Leave Regulations 2024 ("the draft Carer's Regulations") set out the arrangements for employees to make applications for unpaid carer's leave.  In their current form, the draft Carer's Regulations will bring the right to carer's leave into force on 6 April 2024.  They provide for employees with a caring responsibility for a dependant with a long-term care need to take up to one weeks leave in any rolling twelve-month period.  One week is the maximum period irrespective of how many qualifying dependents the employee may have responsibility for.

A dependent includes a spouse, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger, or boarder), or a person who reasonably relies on the employee for care.  A long-term care need is a physical or mental illness or injury that requires or is likely to require care for more than 3 months, is a disability under the Equality Act 2010, or is related to old age. 

The right is a "Day 1" right with no need for qualifying service.  It can be used by the employee to either arrange or provide care for the dependent.  The leave may be taken as half or full days, up to and including taking a block of a whole week at once.

There is no requirement on an employee to evidence their entitlement - the unpaid nature of the leave likely reduces the potential for abuse.  Employee's intending to take the leave must though provide appropriate notice.  The notice need not be in writing but must include a statement confirming entitlement to take carer's leave and specifying the day(s) or part of days to be taken.  The notice to be given (which can be waived by the employer if it wishes to do so) is the longer of twice the period of leave being requested, or 3 days. 

Employers may not deny a request for carer's leave but can postpone it if they believe allowing it would unduly disrupt their business.  If the leave is to be postponed, counter notice must be issued by the employer as soon as reasonably practicable but not later than the earlier of 7 days after the request for leave was made or before the earliest date on which the leave is requested.  The counter notice, which must be in writing, must state the reason the postponement is necessary and set out alternative dates that the leave may be taken.  Any alternative dates must be no later than 1 month after the earliest date included in the employee's original request.

During the leave, the employee is entitled to his normal terms and conditions of employment, other than wages or salary.  The employee is also entitled to return to their substantive role following the leave period.  Employees are protected from both detriment and dismissal connected to the employee seeking to use or making use of carer's leave, or if the employer believed the employee was likely to take carer's leave.  This applies to detriments and dismissals that take place on or after 6 April 2024.

The draft Carer's Regulations may be altered before being finalised.  However, employers should still now be updating or creating appropriate policies and procedures to ensure that they are able to manage applications with effect from 6 April 2024.

Paternity leave

The draft Paternity Leave (Amendment) Regulations 2024 were published in January 2024.  They confirm that changes to paternity leave are to take effect for leave following a birth where the expected date of childbirth is on or after 7 April 2024; and for leave following adoption where the actual date of placement is on or after 6 April 2024.  Paternity leave is to become more flexible allowing eligible employees to take the leave in two separate blocks of a week and at any time during the first 12 months following birth or adoption.  Notice provisions are also to be changed with employees only needing to give 28 days notice of their intention to take the leave, reduced from the requirement to give notice 15 weeks before the Expected Week of Childbirth. 

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