There are a number of changes to family-related rights and protections on the horizon. Most recently, the Government has announced forthcoming changes to paternity leave in its response to the Good Work Plan: proposals for families. New legislation has also been published on flexible working requests, neonatal care, carer's leave and redundancy protection for expectant mothers and new parents and the CIPD has published a report on workplace support for employees experiencing fertility challenges, investigations or treatment. We take a look at these new developments and what employers should be doing about them.
Family-Friendly Policies: Six New Developments for Employers Consider
In its response to a 2019 consultation on a number of proposals for reforming parental leave and pay, the Government confirmed that it would make changes to paternity leave. It also acknowledged the difficulties that exist with the shared parental leave provisions including the complexity of the scheme, the lack of awareness among parents and employers and affordability being a barrier to take up of the entitlement. Nevertheless, there are no proposed changes to shared parental leave or unpaid parental leave for the time being.
New legislation has recently been published which will enhance family-friendly rights and protections and flexible working requests and we have also seen some helpful guidance from the Chartered Institute of Personnel and Development (CIPD) on workplace support on fertility matters, a topical issue for many employers.
We have set out below the changes that have been announced and what they mean for employers:
Currently, eligible fathers and partners are entitled to choose to take either one or two weeks' paid paternity leave. It must be taken in one block, within eight weeks of the baby's birth and employees must give employers at least 15 weeks' notice that they intend to claim paternity leave and pay and at the same time specify their leave start date.
The changes to be implemented will mean that:
- eligible fathers and partners will be able to take paid paternity leave in two separate blocks of one week each if they wish rather than having to take all their leave in one go;
- eligible fathers and partners will be able to take statutory paternity leave at any time within the first 52 weeks of birth (or placement for adoption) rather than in the first 8 weeks of birth (or placement for adoption);
- fathers and partners will need to give their notice of entitlement to paternity leave and pay 15 weeks before the birth, but for notice of the paternity leave start date they will only need to give 28 days' notice before the date that they intend to take each period of leave (and pay, where they qualify).
These changes are intended to give fathers and partners greater flexibility in the way they take paternity leave and promote solo parenting, which has been shown to have positive benefits for children. Allowing fathers to take two separate blocks of one week's leave should make it easier for fathers to use their entitlements and balance work commitments or financial constraints which may be preventing them from taking all their entitlement currently. The added flexibility should also benefit the needs of the family, for example with fathers being able to take a week of paternity leave when the baby comes home from hospital and a further week later on when the mother is ready to return to work.
For some, the measures will not go far enough. A new report from the Centre for Progressive Policy, Pregnant Then Screwed and Women in Data published in June 2023 looked at the economic and health impacts of extending the statutory entitlement to paternity leave and pay. It calls for an increase for paternity leave to a minimum of six weeks paid at 90% of income in line with current statutory maternity pay.
Many countries including Sweden, France, Spain, Norway and Luxembourg have at least six weeks' paid paternity leave for fathers and partners and analysis of OECD data finds that countries with more than six weeks' paid paternity leave have a 4% smaller gender pay gap. The report argues that increasing statutory entitlement to paternity leave and pay could help to close the gender employment gap and decrease the gender pay gap.
We do not yet have a timetable for the changes to paternity leave. Legislation will be introduced "in due course".
The Employment Relations (Flexible Working) Act 2023 is expected to receive Royal Assent on 20 July 2023. The Act takes forward the following measures:
- Allowing two statutory requests in any 12-month period (rather than the current one).
- Introducing a new requirement that employers cannot refuse an application unless they have first consulted the employee about the application.
- Requiring employers to respond to a request within two months (rather than the current three).
- Removing the existing requirement that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.
The Act does mention making flexible working requests a day one right, but the Government has confirmed that it will be introduced through secondary legislation "when Parliamentary time allows". It also does not mention any minimum standard of consultation with employees before it can refuse an application nor does it require employers to offer a right of appeal, although an appeal process is recommended in the draft Code of Practice which has just been published by ACAS and on which ACAS is currently consulting.
The new Neonatal Care (Leave and Pay) Act 2023 gives parents the right to take neonatal care leave and receive neonatal care pay entitlement. Regulations will need to be introduced and are expected to:
- Give parents up to 12 weeks of paid leave, in addition to other leave entitlements such as maternity and paternity leave, so that they can spend more time with their baby who is receiving neonatal care (having been born prematurely or sick) in a hospital or other agreed care setting.
- Be a day one right for employees.
- Apply to parents of babies admitted to hospital up to the age of 28 days and who have a continuous stay in hospital of seven full days or more.
Changes are expected to be delivered in April 2025
Under the new Carer's Leave Act 2023 regulations will be introduced which are expected to provide:
- A new statutory right of at least one week's unpaid leave for unpaid carers per year.
- It will be a day one right.
- Employees will be able to take leave to provide or arrange for care of an immediate family member, someone in their household or who reasonably relies on them for care with a defined long-term care need.
- The carer will be protected from suffering any detriment arising from it and any dismissal related to exercising the right to carer's leave will be automatically unfair.
Regulations will be needed which will set out the exact amount of leave which an eligible employee can take, but it looks likely to be one week. Again, we do not yet have a timetable for the new regulations but it has been reported that it will not be before April 2024.
The new Protection from Redundancy (Pregnancy and Family Leave) Act 2023 provides that expectant mothers will receive greater protection from redundancy during pregnancy and new parents will have extended protections when they return from maternity, adoption and shared parental leave.
The Act enables regulations to be made providing protection against redundancy "during or after" maternity leave, adoption leave or shared parental leave and to add a new provision allowing for regulations concerning redundancy "during or after" a "protected period of pregnancy".
In a consultation response in 2019, the Government committed to:
- extending redundancy protection to apply from the date an employee notifies the employer of her pregnancy until six months after the end of leave.
- extending redundancy protection into a period of return to work by six months for those taking adoption leave.
- extending redundancy protection into a period of return to work for an unspecified time for those taking shared parental leave.
Regulations will be required to implement the extended protections and the Government has said it will lay down secondary legislation "in due course".
The CIPD has published a report into workplace support for employees experiencing fertility challenges, investigations or treatment. Around one in seven couples in the UK may have difficulties conceiving and research shows there is currently a lack of workplace provision to help individuals during this demanding time. For example, only 27% of employers have a policy in place concerning fertility treatment yet almost one in five employees said they considered leaving their job because of their experience at work in relation to fertility challenges, investigation or treatment.
The report contains some helpful guidance for employers on good practice principles for workplace support including:
- Raise awareness across the organisation about the need for fertility challenges, investigations or treatment to be recognised as an important workplace wellbeing issue.
- Create an open, inclusive and supportive culture.
- Develop an organisational framework to support employees, including specific policy provision.
- Manage absence and leave with compassion and flexibility, considering the potential impacts on both partners.
- Equip line managers to support people with empathy and understanding.
There is currently no set timetable for implementing the Government's proposals on paternity leave reform or for laying down regulations needed for the new rights to flexible working requests, neonatal care leave and pay, carer's leave and enhanced redundancy protection in pregnancy and for new parents. With regulations for carer's leave expected in April 2024, neonatal care by April 2025 and paternity leave and enhanced redundancy protections being published in due course and no timetable yet for flexible working requests, employers have time to review current policies and prepare for the new measures when they come into force.
As the focus on workplace inclusion remains a priority for many organisations, we are seeing more employers considering the issues around fertility in the workplace and looking at effective means to support employees who are experiencing those challenges. The CIPD guidance provides employers with an understanding of good practice and a framework for implementing their own policies.
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