Employment Law regulations in Parliament – update

Flexible working to become a Day One right from April 2024#

The Flexible Working (Amendment) Regulations 2023 have been laid before Parliament.

The Regulations remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working. The change makes the right to request flexible working a Day One right.

This new right will come into effect for flexible working requests made on or after 6 April 2024.

As far back as 2022, the government indicated their intention to make this change. However, it was notably omitted from the other changes to the statutory flexible working regime, included in the Employment Relations (Flexible Working) Act 2023 published earlier this year.

The Act will come into force on a date set by the Secretary of State in a separate statutory instrument. However, it is likely that these changes will come into force in April 2024 – the same time as the Day One right comes into effect.

Protection from Redundancy: Pregnancy and Family leave

The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024  have been laid before Parliament, extending the period of special protection from redundancy for employees who are on maternity leave, adoption leave or those on shared parental leave. It brings the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 into operation.

Currently, regulation 10 of the Maternity and Parental Leave Regulations 1999 provides that parents on maternity leave, adoption leave or shared parental leave should be offered first refusal of any suitable alternative employment which may be available in a redundancy situation.

This protection is, under the Act, extended as follows:

1. For maternity – the protected period will cover pregnancy, alongside 18 months from the first day of the estimated week of childbirth. The protected period can be changed to cover 18 months from the exact date of birth, if the employee gives the employer notice of this date prior to the end of 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.

The extension to the protected period to cover pregnancy applies where the employer is informed of the pregnancy on, or after, 6 April 2024.

The extension of the protected period, to cover a period of time after leave has been taken, will apply to any maternity and adoption leave ending on, or after, 6 April 2024. This will also apply to any shared parental leave starting on, or after, 6 April 2024

Carer’s Leave Regulations

The Carer’s Leave Regulations 2024 have been laid before Parliament. They set out the statutory scheme under which employees can apply for up to one week of unpaid carer’s leave, in any 12 month period.

Key features are:

• the right is a Day One employment right
• the right applies to employees who have a dependant with a long-term care need and those who want to be absent from work to provide, or arrange care for that dependant
• requests can be in consecutive, or non-consecutive, half-days or full days
• employees must give notice, in writing, of their intention to take carer’s leave – confirming their entitlement to take it and giving at least twice the amount of notice than the period of leave requested. Or, if longer, three days’ notice
• employers can postpone a request if the operation of the business would be unduly disrupted. In these circumstances, the employer must give notice of the postponement before the leave was due to begin, and must explain why the postponement is necessary. The employer must then allow the leave to be taken within one month of the start-date of the leave originally requested. Rescheduling the leave should be done in consultation with the employee
• employees are protected from detriment and dismissal because they take, or seek to take, carer’s leave (or the employer believes they are likely to do so)

The Regulations are due to come into force on 6 April 2024.

These updates were first published by Daniel Barnett, Emplaw Law Services