The Government has laid before Parliament several highly anticipated sets of employment regulations, setting out the details of the new regime for flexible working requests, the right to carer’s leave, and extended redundancy protection for pregnant employees and those returning from maternity, adoption and shared parental leave. Below, we take a look at the new provisions.
The much publicised provision making the right to request flexible working a “day one right” (so that no minimum length of service is required before an employee can make a flexible working request) has now been published in the Flexible Working (Amendment) Regulations 2023. These Regulations are due to come into force on 6 April 2024, meaning that the requirement to have 26 weeks of continuous employment will not apply to applications for flexible working made on or after that date. We assume that the Government intends to bring the amendments to the flexible working regime introduced by the Employment Relations (Flexible Working) Act 2023, discussed in our December FAQs, into force on the same date.
An updated Acas Statutory Code of Practice on Flexible Working, providing guidance on the new regime, has also been laid before Parliament. The Code sets expectations for the process that employers should follow when handling flexible working requests. Failure to follow the Code does not, of itself, give employees a right to bring an employment tribunal claim, but tribunals must take the Code into account when considering relevant cases. (At the time of writing, the Code has not yet been made available online, but we expect it largely to mirror the draft Code that Acas published for consultation back in July. Acas has also not yet published its further guidance on handling flexible working requests, that it has said will accompany the Code.)
Under the Carer’s Leave Act 2023, employees who have a dependant with a long-term care need will be granted a statutory right to one week’s unpaid care leave per year. This right will apply from day one of employment and employees will not be required to provide any evidence of their entitlement to the leave.
A “long-term care need” is defined as an illness or injury (either physical or mental) that requires or is likely to require care for more than three months, a disability under the Equality Act 2010, or issues related to old age. The focus on a long-term care need is deliberate as the Government has stated that other types of leave (such as time off for dependants or annual leave) should be used for dealing with short term care needs.
The draft Carer’s Leave Regulations 2024, setting out further details of the right, have now been published. They confirm that carer’s leave will be available to be taken flexibly – as either full days or half days, up to a block of one week in a 12 month period. They also set out the notice requirements for taking carer’s leave: employees must give notice that is twice the length of the time being requested as leave, subject to a minimum notice requirement of three days. Employers cannot prevent employees from taking the leave, although they can postpone it for up to one month if they reasonably consider that the operation of the business would be unduly disrupted by the employee taking the leave on the requested dates.
The right to carer’s leave will take effect from 6 April 2024.
Extended redundancy protection for pregnant employees and those returning from family-related leave
Currently, individuals who are on maternity, adoption or shared parental leave have priority over other at-risk employees for any suitable alternative vacancies in a redundancy situation. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023, together with the newly published draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024, will extend these protections to employees who are pregnant or who have recently returned to work from such leave.
In relation to pregnancy, the Regulations provide that the period of pregnancy is protected from the date on which the employee informs the employer they are pregnant. The additional protected period for employees returning from maternity leave ends 18 months after the date of the child’s birth (or 18 months after the first day of the expected week of childbirth if the employee did not inform the employer of the child’s date of birth during their maternity leave). This means that an employee who takes a year of maternity leave will receive six months of additional redundancy protection after returning to work.
For adoption leave, the 18 month protected period begins on the day the child is placed with the employee for adoption. For shared parental leave the 18 month protected period begins when the child is born or is placed for adoption. However , for employees taking shared parental leave who have not also taken maternity or adoption leave, there is a six-week threshold of continuous leave that needs to be met for the protected period to extend after shared parental leave itself has ended. Where the six-week threshold is not met, the protection applies during shared parental leave only. This is intended to avoid the situation where, for instance, an employee who took only a couple of weeks off would benefit from the same priority for alternative vacancies as an employee who was out of the business for many months. (Protection on return from shared parental leave will not apply where an employee has also taken maternity or adoption leave and is entitled to protection on their return to work under those provisions.)
The additional protection set out in the Regulations applies:
- for pregnant employees, where they inform their employer of their pregnancy on or after 6 April 2024;
- for employees returning from maternity leave or adoption leave, where they return on or after 6 April 2024;
- for employees returning from shared parental leave, where they take a period of at least six consecutive weeks of shared parental leave that commences on or after 6 April 2024
How we can help
Employers should now look at reviewing their policies to ensure they comply with the new rules, and will need to provide updated training for line managers and HR.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance. We are in the process of updating the HR & Legal Resources on the Make UK website to take account of the changes discussed above.