Enhancements to family leave published

David Leach reports on the latest legal developments in relation to family leave.

In June 2023, we discussed a number of Bills and Acts that were of key interest to employment law practitioners, HR departments and employers as a whole.

In what seems like an early Christmas present from the government, the regulations are being published at breakneck speed to augment and expand on the Acts.

We have already updated our Flexible Working Article to detail the new day one right on these requests, with further regulations and updates expected.

Redundancy Protections

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 have been drafted. At the time of writing this article these are draft regulations so could be subject to change. The draft Regulations will activate the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 and extend the special protection period for employees during redundancy.

The new protections will come into force on 6 April 2024 and the extension will operate as follows:

1. Covers pregnancies that are notified to employers on or after 6 April 2024
2. To cover a period of time after leave has been taken for any maternity or adoption leave ending on or after 6 April 2024 or any shared parental leave starting on or after 6 April 2024.

Currently, the maternity and parental leave regulations 1999 grant parents on maternity leave, adoption leave, or shared parental leave the right of first refusal of any suitable available vacancy during a redundancy situation.

Under the Act this protection will now extend to:

1. For those on maternity – cover pregnancy, up to 18 months from the first day on what is expected week of childbirth. Though this can be changed to be the 18 months from the exact date of childbirth. This will happen if the employee fives notice this what this date is to the employer before the end of the maternity leave.
2. For adoption – the protected period will cover 18 months from placement for adoption.
3. For shared parental leave – the protected period will cover 18 months from birth, provided that the parent has taken a period of at least 6 consecutive weeks of shared parental leave. This protection will not apply if the employee is otherwise protected under 1. or 2. Above.

Commentary

The expected 18-month protection from date of birth/placement has been brought into codification with these regulations. Employers will now need to start thinking urgently about how this extended protection will be tracked to make sure that in the event there are redundancies in the future they are not inadvertently infringing on these new protections.

These new protections will also supplement the protections that have come with the formalisation of updates to the Equality Act 2010, that have codified protections for woman during, after and for situations associated with pregnancy:

• Unfavourable treatment on the ground of breastfeeding will constitute direct discrimination on the grounds of sex;
• Women are protected from unfavourable treatment after they return from maternity leave, where that treatment is in connection with the pregnancy or a pregnancy-related illness which occurred before their return. Currently there appears to be no limits on time after return to work that this type of claim could arise;
• Woman are protected from pregnancy and maternity discrimination where they have an entitlement to maternity leave, which is equivalent to compulsory, ordinary or additional maternity leave;

Carer’s Leave

The Carer’s Leave Regulations 2024 have been published, which adds further information and context around the new unpaid statutory Carer’s Leave entitlement which was first set out in the Carer’s Leave Act 2023. The regulations come into effect on 6 April 2024.

What do these regulations provide:

1. This leave is a Day One right.
2. Available for employees who have a dependant with a long-term care need and who want to be absent from work to provide or arrange care for this dependant.
3. Requests for use of this leave can be consecutive or non-consecutive use of full or half days (up to one week)
4. Employees give notice to take this leave in writing that they want to take carer’s leave setting out their entitlement to take this leave and giving minimum notice which is at least double of the amount of time to be taken.
5. Employers can postpone and reschedule this leave being taken when absolutely necessary, though they must do so in consultation with the employee, and setting out the rational for this and how taking this leave will impact on the operation of the business and it be unduly disrupted. The employer must then allow the leave within one-month of the start date of the leave originally requested.
6. Employees will protected from detriments and dismissal because they have taken, seek to take or employers believe they will seek to take carer’s leave.

Commentary

The intention is that this new right to leave will allow employees to properly take time away from work, and not worry about taking annual leave or seeking to rely on emergency leave to support their dependants.

Employers will need to provide guidance on the application process and how that leave is tracked, especially as this time off work could impact on other issues such as Holiday Pay for Irregular hour workers.

While employers retain the right to refuse an application for leave, this should be exercised cautiously and with very clear justification.

This and many other changes are going to change how employers will have to track leave end protections for its employees. If any employers wish to discuss new or updated policies please do get in contact and we are happy to assist.

We think it is unlikely this new right will have a significant impact for our clients, predominantly as the employees most likely to need this leave are those that can ill afford to take unpaid time off work.

We are also aware that many of our clients are ahead of the curve in adopting innovative carer benefits.  Please do get in contact if you would like us to support you in devising a carer plan.

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This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.