We would like to wish you all a belated happy, healthy and prosperous 2024!
There are a number of “family friendly” legal changes coming into effect at the same time early this year which you need to be aware of.
Paternity Leave Amendment Regulations 2024
Firstly, the new Paternity Leave Amendment Regulations 2024 have been published and these increase flexibility around paternity leave. Paternity leave can currently only be taken in one block which means that while a father is entitled to up to 2 weeks of leave, if they take 1 week, they cannot take the other week on a separate occasion. To make paternity leave easier to take, these Regulations will do the following:-
- Allow fathers and partners to take their leave and pay in two non-consecutive 1 week blocks
- Allow fathers and partners to take their leave and pay at any time in the first year after their child’s birth or adoption (currently it has to be taken in the first 8 weeks)
- Shorten the notice period required for each period of leave and pay from 14 weeks before the expected week of childbirth to 4 weeks (28 days) before each week of leave
The Regulations will apply in all cases where the expected week of childbirth is on or after 6 April 2024.
Other changes include the introduction of Carer’s Leave, changes to flexible working rights and the extension of redundancy protection to include pregnancy and a period of time following maternity leave. We take a look at each of these changes below and the implications for your business.
The Carer’s Leave Act 2023 is due to come into force on 6 April 2024. This gives employees with caring responsibilities the right to at least 1 weeks leave to provide or arrange care for a dependant with a long term care need. This right is from day one of employment – it requires no minimum length of service.
A “dependant” includes a spouse, child or parent of the employee who lives in the same household as the employee or who reasonably relies on the employee to provide or arrange care. A “long term care need” means a dependant who has an illness or injury likely to last more than 3 months, a disability within the meaning of the Equality Act 2010 or who requires care for a reason connected with old age.
No evidence is required from employees to support a request for such leave and employers cannot insist on it. Furthermore, employees cannot be penalised for taking leave under the Act. If an employee is dismissed for taking carer’s leave it will be an automatically unfair dismissal.
In light of these forthcoming changes, it is advisable to review policies and plan for the changes by setting out the right to take carer’s leave in these circumstances. Consideration should also be given to what systems or processes and record keeping are required to handle requests and monitor leave.
Those entitled to the leave must take a minimum of half a day at a time. The entitlement is to 5 working days over a rolling 12 month period. Notice must be given but there is no requirement for it to be in writing. Twice the length of time off being requested must be given or 3 days, whichever is longer.
Employers may not refuse a request for carer’s leave but can postpone it if they reasonably consider that the operation of the business will be unduly disrupted. If the employer does postpone the leave, they must provide a written counter notice within 7 days of the request explaining the reason for the postponement and the revised dates the leave can be taken on. The employee must be allowed to take the leave within a month.
You should consider updating or creating policies to inform employees of the new right and how to request and take the leave. You may wish to create a self-certification form for employees to complete declaring that they meet the legal definition of carer and will be using the leave in that capacity. We will be assisting those of you who are members of our Employers’ Protection Scheme with these updates. You may also wish to introduce a system of record keeping and inform managers of the new right, the fact that any dismissal connected to using the leave will be automatically unfair and the potential sensitivities around this subject. It is also possible to enhance the new rights by offering pay for some or all of the entitlement or an increased amount of unpaid time off.
Priority Status For Redeployment Opportunities
Also from 6 April 2024, those who are pregnant or returning from maternity leave, adoption leave or shared parental leave will gain priority status for redeployment opportunities in a redundancy situation. Currently, those who are on maternity leave, shared parental leave or adoption leave already have special protection in a redundancy situation. They have the right to be offered a suitable alternative vacancy in priority to others at risk of being made redundant.
The new Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends this protected status to pregnant employees and those who have recently returned from maternity leave, shared parental leave or adoption leave.
The protection for pregnant employees starts when the employer has been notified of the pregnancy and ends 18 months from the baby’s birth. The new right also applies to women who have suffered a miscarriage and employees who have taken adoption leave or shared parental leave. The protection does not, however, extend to paternity leave. A father must take shared parental leave in order to become eligible for up to 18 months of protection in a redundancy scenario.
The protection provides priority for redeployment opportunities; it does not mean that protected employees cannot be made redundant during the protected period. Protected employees can still be selected for redundancy. The protection is triggered in relation to the allocation of suitable alternative vacancies.
Employers will need to carefully consider the implications of the new protections when contemplating redundancies and restructures. There is no guidance on how to proceed when there are more employees with protected status than there are available vacancies.
Failure to offer an employee with protected status a suitable alternative vacancy would mean that the employee has a claim for automatically unfair dismissal and potentially uncapped compensation as well as a claim for unlawful discrimination. There is no qualifying period of service for this right.
Flexible Working (Amendment) Regulations 2023
The Flexible Working (Amendment) Regulations 2023 also come into force on 6 April 2024. Currently employees have to have been continuously employed for 26 weeks to be entitled to make a flexible working request (“FWR”). These Regulations remove this requirement so that employees will be entitled to make a FWR from the first day of employment.
Flexible working has a broad meaning and can apply to working hours, including part time, term time, flexi time or adjusting start and finish times. It can also include flexibility over place of work. There are new requirements for employers to consult with the employee before rejecting their FWR and
- Permission to make 2 statutory FWRs in any 12 month period rather than just 1 as at present
- Reduced time for decisions to be made by employers from 3 months to 2 months
- Removal of existing requirement for an employee to explain what effect, if any, the change applied for would have on the employer and how that effect may be dealt with
ACAS has produced a new draft Code of Practice on how to handle Flexible Working Requests under the new regulations which can be accessed by clicking on this link https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/2024
In other changes, the maximum civil penalty for the illegal employment of adults subject to immigration control will increase from £20,000 to £60,000.
De Banks Haycocks V ADP RPO UK Ltd
Finally, a recent decision of the Employment Appeal Tribunal (“EAT”) in the case of De Banks Haycocks v ADP RPO UK Ltd held that a failure to engage in meaningful consultation with the workforce at a time when redundancy proposals were at a formative stage renders the dismissal for redundancy unfair.
This is an important decision as it applies to relatively small-scale redundancies and even though the employer consulted with the individual employee the redundancy was nevertheless unfair.
In this case the employer, a recruitment consultant, needed to make redundancies among a team of 16 employees who were employed solely to recruit employees for a particular investment bank. As a result of the Covid-19 pandemic the bank’s requirement for recruitment services dropped by about 50% and the recruitment company therefore decided to reduce its client team headcount.
An assessment of those at risk was carried out with Mr De Banks Haycocks being bottom in the ranking. Following this exercise, the company decided that the team had to lose 2 roles. Mr De Banks Haycocks was consulted on an individual basis. However, he was unaware of what scores he had achieved and was not given the scores of the other 15 employees as a comparison. He appealed to the company following his dismissal but his appeal was unsuccessful.
He brought a claim for unfair dismissal in which he claimed that his dismissal for redundancy was procedurally unfair due to a lack of any meaningful consultation and that there was effectively a decision to dismiss 3 weeks before the commencement of consultation. The Tribunal did not uphold his claim and he appealed to the EAT.
The EAT agreed with Mr De Banks Haycocks and held that there had been a clear absence of meaningful consultation by the company during the formative stage of the redundancy process. They found that there was no good reason for the employer not to have undertaken “general workforce consultation”. The absence of meaningful consultation at a stage when the employees have the potential to affect the decision is indicative of an unfair process.
This is a very important case as it appears to impose on employers an obligation to consult with the workforce on proposed redundancies whether or not collective consultation has been triggered. It brings forward the timing of consulting with employees at risk of redundancy including where there is no requirement to collectively consult. As a result of this decision, employers will need to decide whether to risk unsettling the workforce by consulting with all those at risk at an early stage or whether to run the risk of a claim in line with this case if there has been a lack of proper consultation at a formative stage. One option would be to consider setting up a standing employee consultative body with whom proposals could be canvassed.