Increased protection at work for parents and carers

Three Private Members' bills introducing new family friendly employment rights were passed on 24 May 2023. The new rights are not yet in force and much of the detail is still to be published. However, it is important for employers to be aware of the forthcoming changes and to incorporate them into future policy reviews.

Carer's leave

The Carer's Leave Act 2023 will introduce a new statutory 'day one' right to unpaid carer's leave for employees who are providing or arranging care for a dependant with a long-term care need:

• The person being cared for must be a 'dependant' of the employee which means a spouse, civil partner, child, parent, someone living in the same household or a person who reasonably relies on the employee to provide or arrange care.
• A 'long-term care need' covers individuals who have an illness or injury (physical or mental) that requires, or is likely to require, care for more than three months; have a disability in terms of the Equality Act 2010; or require care for a reason connected with their old age.
• Future regulations might set out activities that are, or are not, 'providing or arranging care'.

The amount of leave, and how it can be taken, is not yet clear but it looks likely that:

• Carers will have a right to one week's unpaid leave during any 12-month period.
• Leave can be taken in increments of half-days or full days, and as one continuous block of leave or multiple shorter periods throughout the year.
• Employees will need to give notice, and both employees and employers will need to adhere to certain procedures - the details have yet to be finalised.
• Employers will not be able to refuse a request, but will be able to postpone the leave requested to a later date if it is 'reasonable' to do so. 
• Employees will not need to provide evidence of how the leave is used or who it will be used for.
• There will be protection from detriment / dismissal in relation to requests for carer's leave.

Much of the detail is still to be published via separate regulations. The commencement date is not yet known but it is not expected to be before April 2024.

Neonatal care leave and pay

The Neonatal Care (Leave and Pay) Act 2023 will introduce a new right for employees to neonatal care leave and pay:

• There will be a right to up to 12 weeks' neonatal care leave and pay for parents of babies admitted into hospital for neonatal care up to the age of 28 days, and who have a continuous stay in hospital of seven days or more.
• Neonatal care leave will be a 'day one' right while neonatal care pay will require employees to have 26 weeks' continuous service and have been earning at least the lower earnings limit for a period of 8 weeks prior to taking the leave.
• Neonatal care leave can be taken within 68 weeks of birth. As maternity leave will normally have started when a child is admitted into neonatal care, in practice neonatal care leave might be added to the end of maternity leave – but we await the regulations for clarification.
• It is expected that neonatal care pay will be calculated at the normal flat rate for statutory family leave pay (currently £172.48 per week), rather than the enhanced rate that applies during the first six weeks of maternity leave.
• The new right will be in addition to other family friendly entitlements such as maternity or paternity leave.

The UK government has said that seven sets of regulations implementing the new entitlement will be published 'in due course'. It is expected to come into force in April 2025.

Extended protection from redundancy

Currently if an employee on maternity, adoption or shared parental leave has been selected for redundancy, they must be offered alternative employment where there is a ‘suitable’ available vacancy. A failure to do so means that the employee’s dismissal will be automatically unfair and, in some cases, there may also be a discrimination claim. 

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 is set to come into force on 24 July 2023. It will extend the redundancy protection period to cover any period of pregnancy and a period of time (expected to be six months) immediately following the employee's return to work from maternity, adoption or shared parental leave.

For more information in relation to any of the above please get in touch with a member of Brodies Employment and Immigration team. Workbox by Brodies users can keep up to date with these, and other, employment law and HR developments via the What's New? page.