Employment Law E-Bulletin – Issue 92

  • The Flexible Working (Amendment) Regulations 2023
  • The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024
  • Carer’s Leave Regulations 2024

December has seen a flurry of activity in terms of new secondary legislation which will come into force from 6 April 2024. This will bring changes to flexible working rights, carer’s rights and enhanced redundancy protection during and after family leave.

The Flexible Working (Amendment) Regulations 2023

This new legislation brings a significant change to the right to apply for flexible working from 6 April 2024, removing the requirement to wait for 26 weeks before an employee can make a request. Instead, employees will be able to apply from day one of employment, which is estimated to bring some 2.2 million more employees within the scope of the entitlement.

This follows the introduction of the Employment Relations (Flexible Working) Act 2023, which received Royal Assent on 20 July 2023. This is yet to come into force, but when it does:

  • Employees will be allowed to make two statutory requests in any 12-month period (rather than the current one request);
  • The employee will no longer be required to explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.
  • The decision period (within which an employer administers the statutory request) will reduce from three months to two months; and
  • Employers will have to consult with the employee before rejecting their flexible working request.

The changes will be supported by a statutory Code of Practice drafted by ACAS. Guidance is expected to be published on gov.uk in January.. Employers will continue to be able to reject requests on a number of permitted business grounds.

The new requirements will affect employers in all sectors, who will need to review their processes and policies (including recruitment practices) to allow employees to request flexible working from day one of employment.

If you need assistance in reviewing your flexible working policies, please contact the employment team here.

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024

These Regulations will extend the existing protection against redundancy (which is the entitlement to be offered a suitable alternative vacancy, where one exists) for employees taking maternity, adoption or shared parental leave to 18 months following the expected week of childbirth or the date of placement for adoption.

For pregnant employees, the enhanced protection will apply from when the employee notifies their employer of their pregnancy (if this is after 6 April 2024) and up to 18 months as above (for any maternity leave ending on or after 6 April 2024). So it is possible that an employee may benefit from part of the enhanced protection only.

In adoption cases, the enhanced protection will apply to any period of adoption leave ending on or after 6 April 2024. In terms of shared parental leave cases, enhanced protection is only available for shared parental leave commencing on or after 6 April 2024 and only if the employee has taken a minimum of 6 weeks of leave.

Employers should review their family friendly and/or redundancy/change management policies and procedures and ensure that managers are aware of the enhanced protection in a redundancy situation so as to avoid any potentially discriminatory claims.

If you require further advice on how to incorporate the changes into your current practices, please contact the employment team here.

Carer’s Leave Regulations 2024

These Regulations bring into force the day one right of eligible employees with caring responsibilities to take one week’s unpaid leave to provide or arrange care for a dependent with long-term care needs within any 12 month rolling period.

Entitlement is based on a number of substantive and procedural requirements, including:

  • a statutory definition of a dependent with long-term care needs; and
  • notice to be given before the earliest day of leave, not necessarily in writing, of twice the length of the leave requested, subject to a minimum of three days’ notice.

Employees can take the leave as half or full days and up to and including a single block of a whole week of leave. Employers can postpone a period of carer’s leave if this would unduly disrupt the operation of the employer’s business. To do so, the employer must give the employee notice as soon as possible and consult with the employee before confirming a new date on which they can take the leave, which must be within one month of the original dates requested.

As with other types of family leave, employees’ terms and conditions of employment apart from pay are protected during carer’s leave and they are entitled to return to the job they held before they went on leave. Employees are also protected from being subject to a detriment and/or dismissal attributable to the fact that they took or sought to take carer’s leave.

Where an employer offers contractual carer’s leave in excess of the statutory entitlement, the statutory leave cannot be exercised in addition to the contractual leave.

Employers should review their carer’s leave policies and procedures and communicate these to all employees, as well as ensure that managers are aware of the new right and respond appropriately to any requests from their employees.

Our employment team can guide you through the new requirements, get in touch with the team here if you would like advice and support.

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