Family friendly rights: an update

For the past few years, the Government has been promising to improve family friendly rights by introducing a new right to carer’s leave and neonatal leave, enhancing paternity leave and flexible working rights, and providing additional protections for parents facing redundancy. Progress is being made on these and we provide an update below.

Carer’s leave

The Carer's Leave Act received Royal Assent on 24 May 2023. It requires the Government to make regulations giving employees the right to take one week’s unpaid leave each year so they can provide or arrange care for a dependant with a long-term care need; no qualifying period of employment is required.

An employee’s dependants, covered by the new right, are their spouse, civil partner, child or parent, someone who lives in the same household as them (other than a lodger, tenant or employee), or someone who reasonably relies on them for care. A dependant will be considered to have a long-term care need if they have an illness or injury that requires, or is likely to require, care for more than three months, if they are disabled for the purposes of the Equality Act 2010, or if they require care due to old age.

Employees who take carer’s leave will be protected from dismissal and detriment as a result of taking leave. They will also be able to bring an employment tribunal claim if their employer unreasonably postpones their leave or prevents, or attempts to prevent, them from taking it.

Further details will be included in regulations and the right to carer’s leave is not expected to be implemented before April 2024.

Neonatal care leave

The Neonatal Care (Leave and Pay) Act also received Royal Assent on 24 May 2023. It requires the Government to make regulations giving parents the right to take at least one week’s leave if their baby requires neonatal care (although the regulations are likely to provide for a longer period). The right will only be given to employees and will be available from the first day of employment. Employees with 26 weeks’ continuous employment may also be entitled to statutory neonatal care pay, subject to meeting the minimum earnings tests applicable to other types of family leave.

Much of the detail is left to be dealt with in the regulations, including rights in relation to retaining existing terms and conditions of employment while on leave, the right to return to work and additional redundancy protections during and following leave. However, we can expect these to match the rights and obligations of employees taking other types of family leave.

Employees who exercise the right to take neonatal care leave will be protected from dismissal and detrimental treatment as a result of taking leave.

The new neonatal leave and pay entitlements are expected to be delivered in April 2025.

Redundancy protections

The Protection from Redundancy (Pregnancy and Family Leave) Act also received Royal Assent on 24 May 2023. It will give pregnant women and new parents additional protection against being made redundant.

Currently women on maternity leave, and parents on adoption and shared parental leave, who are at risk of redundancy have the right to be offered any suitable available vacancy with their employer or an associated employer, before being made redundant. The Act gives the Secretary of State the power to extend redundancy protections to women during their pregnancy and to new parents for a period after they return to work from maternity, adoption and shared parental leave. The Government has indicated that employees will be protected for six months following their return.

Further regulations are required to introduce the extended protections and the Government has given no indication of timescales, other than to say that the regulations will be laid before Parliament “in due course”.

Flexible working

The Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July 2023. It will make changes to the right to request flexible working so that:

• Employees will be allowed to make two flexible working requests in any 12-month period (instead of one)
• The decision period for employers to deal with a flexible working request will be two months (instead of three)
• Employers will be required to consult with employees before rejecting a request
• The current requirement for employees to set out how their employer might deal with the effects of their flexible working request will be removed.

The Government also plans to make the right to request flexible working available from the first day of employment, rather than employees having to wait for 26 weeks. This change will be made by regulations.

The Government expects the changes to come into force in approximately a year’s time so that employers have time to prepare. In the meantime, Acas is consulting on an updated statutory code of practice on handling flexible working requests, which reflects these changes. Responses to the consultation are required by 6 September 2023.

For information how we may be able to support you in relation to maternity, paternity and family friendly rights, please click here, or contact a member of an Employment team.