Family friendly rights upgraded

Flexible working

We have previously briefed employers on changes to the statutory flexible working regime which are expected to come into force on 6 April 2024.

The most significant change is to make the right to make a flexible working request a day-one right, (as opposed to the previous requirement for a worker to have 26 weeks’ service). Employees can also now make two requests per year as opposed to one. There also some important changes to the consideration process and the timescales for handling a request.

Paternity leave

The Paternity Leave (Amendment) Regulations 2024 came into force on 08 March 2024, and apply where a baby’s EWB (Expected Week of Birth), or a baby/child’s EWP (Expected Week of Placement) for adoption leave, falls after 06 April 2024.

There is no increase to the two-week paternity leave entitlement, but the new Regulations make changes to the ways in which the right can be exercised.

The regulations provide that: 

• fathers/partners will be able to take leave as two one-week non-consecutive periods (previously only one block of one or two weeks)
• fathers/partners will be able to take leave within the first year after the birth or adoption, (previously within the first eight weeks)
• the notice period that fathers/partners must give will be shortened to 28 days (previously 15 weeks); The notice period in adoption cases will remain 7 days (to reflect the fact that the adoption process is inherently less predictable)
• fathers/partners will be able to vary the dates of paternity leave so long as they give 28 days’ notice of the change.

These changes make the right to paternity leave more flexible and user-friendly. However, many parent groups have expressed disappointment that the Government did not take the opportunity to increase the core entitlement.

While Shared Parental Leave is available for fathers/partners, this complex and under-used regime is dependant on a mother giving up part of her maternity leave entitlement and is not available at all to father/partners if the mother is not working. There is continued pressure for a more generous, free standing right to paternity leave to allow fathers/partners to spend more time with their children. A change of name from ‘paternity leave’ to something more gender-inclusive also feels overdue.

Carer’s leave

The Carer’s Leave Act 2023 came into force on 4 December 2023. However, further legislation was needed to bring the entitlement into force.

The Carer’s Leave Regulations 2024 come into force on 6 April 2024 and create a ‘day-one’ right for employees who are also unpaid carers for a family member or a dependent with a long-term care need to take up to one week’s unpaid leave in each rolling 12-month period to provide care (s80J to 80N Employment Rights Act 1996).

The leave can be taken as half or full days, up to a block of one week. To reflect the fact that care requirements can be unpredictable, the required notice period is short; either twice as many days as the period of leave required OR three days (whichever is the greater). However, an employer may waive the notice period if it wishes to do so. Again, to ensure maximum flexibility, notice need not be given in writing.

An employer may not decline a request altogether but may postpone the leave date for up to one month if it would result in undue disruption. The employer must provide a written notice within seven days of the initial request, explaining the reasons for postponement and setting out the agreed dates for leave to be taken. However, in many cases, postponing leave may not be feasible (for example if the employee needs to provide care urgently in response to an emergency). Importantly, an employer cannot require evidence (relating to the situation, or the individual requiring care) before granting the leave.

Employers need to tread carefully because, as with other types of statutory leave, employees are protected from detriment for taking or seeking to take carer’s leave. Employees are also protected from unfair dismissal and have the right to return to the same job after taking the leave.

For the purposes of the new Regulations, a ‘dependant’ is a spouse, civil partner, child or parent of the employee; or anyone who lives in the employee’s household and reasonably relies on the employee to provide or arrange care.

A dependant has a ‘long-term care need’ for these purposes if they require care connected with their old age; have a disability for the purposes of Equality Act 2010; or have a physical or mental illness/injury which requires, or is likely to require, care for more than three months.

Employees who need time off to look after a dependant who does not have a long-term care need, for example to deal with a child’s unexpected illness or injury, can continue to make use of the right to ‘reasonable time off’ for dependants (s57A and 57B ERA 1996). This time is unpaid, and is intended to deal with short-term emergencies only, or to put longer-term arrangements in place.

Additionally, a parent or carer of a child aged under 18, remains entitled to a period of 18 weeks unpaid parental leave in respect of each child, whether or not they have specific care needs (s76-79 Employment Rights Act 1996). 52 weeks continuous service is required to qualify.

With all the above types of unpaid leave, employers are free to offer full or part pay if they wish to do so. A consistent approach should be applied to all employees taking the same type of leave.

Neonatal leave and pay

Looking further ahead, the Neonatal Care Leave and Pay Act 2023 received Royal Assent in May 2023, and the entitlements it creates are expected to come into force in just over a year’s time (April 2025) as an addition to other existing maternity/paternity rights. The detail will be contained in subsequent regulations which are still awaited.

Parents with 26 weeks’ service will be entitled to take up to 12 weeks’ additional paid leave if their baby requires seven days’ (or more) continuous neonatal care starting within 28 days of being born.

It is expected that the leave will be able to be taken after other statutory family leave, (e.g. maternity/paternity), but with a long-stop date of 68 weeks from the date of the child’s birth.

Along with details of the practicalities of notice, evidence requirements and record-keeping, the rate of statutory neonatal care pay is yet to be confirmed. It is anticipated that pay will be at a statutory prescribed rate or, if lower, 90% of the employee’s average weekly earnings. The Government has promised a long lead-in time to enable employers to prepare to administer the new statutory payment.