Plans to introduce additional statutory rights/protections for parents and carers in the UK continues to be a hot topic among legal commentators. The proposals, made via three Private Member’s Bills, received Royal Assent on 24 May 2023 bringing the measures one-step closer to being implemented.
Summary of the current position
At present, where an employer proposes to dismiss as redundant an employee who is on maternity, adoption or shared parental leave, they are obliged to offer the employee any suitable vacancy (where one exists).
For parents in the unfortunate position of caring for a new-born requiring neonatal care, they can only rely on maternity and paternity entitlements/leave during this time. Where babies require a lengthy stay in neonatal units such entitlements may be inadequate.
As for carers, they may need to use annual or other types of leave or flexible working arrangements, in order to support their caring duties, which can make it difficult to balance their responsibilities both in and out of the workplace.
What will the new statutory rights/protections offer?
The Government’s plans (detailed in earlier consultation documents), in relation to these proposed new statutory rights, are summarised below.
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will extend the existing redundancy protections (detailed above). This will help shield expectant mothers from workplace discrimination, offering them greater job security at an important time in their lives.
It is understood that the intention is for the extended protection to cover the period from when an employee tells her employer that she is pregnant until 18 months after the birth. The 18-month window means that following a year of maternity leave, employees will benefit from continued protection in the first 6-month period back at work. The legislation is also intended to cover and provide protection in miscarriage situations, specifically where an employee whose pregnancy has ended prior to her notifying her employer of the pregnancy.
The Neonatal Care (Leave and Pay) Act 2023 will provide eligible employed parents, from day one of their employment, whose new-born baby is admitted to neonatal care (for at least 7 continuous days) either immediately or within 28 days after birth, to take up to 12 weeks (one week per full week the child is in neonatal care) of neonatal leave. It is understood that the proposal is for the leave to be taken either whilst the child is receiving neonatal care or within a specified period thereafter; to avoid impacting on other leave entitlements such as maternity leave. This benefit enhances existing leave entitlements.
Eligible employees would be entitled to be paid during the neonatal leave period, at the usual statutory rate of pay for family-related leave, provided they meet the standard minimum earnings test and the provisions for qualifying service.
The Government has not committed to when the secondary legislation required to bring the above legislative changes into force will be enacted – merely stating that it will be in ‘due course’. It is envisaged that multiple statutory instruments would be required to bring the new entitlements into place, meaning delivery is currently anticipated to be April 2025.
The Carer’s Leave Act 2023 will create a new statutory entitlement to one week of flexible unpaid leave per year (pro-rated for part-time staff), for employees who are caring for a dependant (i.e. spouse, civil partner, child or parent, or someone who lives in the same household as the employee but not as a boarder/employee/lodger or tenant), or someone who reasonably relies on the employee to provide or arrange care) with a long-term care need. A long-term care need is:
- An illness or injury (whether physical or mental) that requires/is likely to require care for 3 months or longer.
- A disability in line with s.6 of the Equality Act 2010.
- Care for a reason connected with old age.
This entitlement will be available to all employees as a day one right, to enable carers to better balance their caring and work responsibilities.
It is widely recognised that employees caring for a dependent often resort to requesting parental leave or flexible working arrangements in support of their duties, both of which were designed for other purposes.
This entitlement will be in addition to the current legislation which allows employees to take time off to care for dependants in an emergency.
As with the proposed statutory parental protections, no firm date has been set for implementation of the Act, but what we do know is that it is unlikely to occur before Spring 2024.
Summary
The decision to pass the proposed bills in the first instance is a huge step forward for enhancing existing protections for both carers and parents. That being said there is still much to be done to create the implementing regulations meaning employers can expect to see little change for at least another 12 months.
Whilst it is not yet necessary for employers to act, it is important to keep an eye on any developments and take the available time to consider sooner rather than later how best to prepare the organisation for the anticipated changes.
In our experience employers operating in the health sector are often at the forefront of developing their arrangements and procedures before legislative changes take effect (i.e. flexible working provisions under AfC in the NHS) and may therefore already be or may wish to start discussing planned changes to policies and procedures with staff/trade unions.
Once more details on the specific implementation of the above legislation are available (we will provide updates in due course), employers should consider in particular:
- Updating policies and handbooks to include the new rights/entitlements (as a minimum) and ensure they interact effectively with existing policies/procedures.
- Ensuring all employees/managers are fully informed of the changes and understand how these will work in practice.
- The specific process changes needed when carrying out redundancy processes.
Please do not hesitate to contact Hill Dickinson’s Health Employment team if you have any questions or need some advice on this area.
For further information, please contact:
Fiona McLellan, Partner, Hill Dickinson
fiona.mclellan@hilldickinson.com
