A number of new acts will come into force in the next couple of years which will bolster employees’ rights and protections with respect to ‘family friendly leave’. In each case, we’re waiting for further legislation to determine the finer details but a brief overview of each is below:
Neonatal Care (Leave and Pay) Act 2023
Currently, employees have no statutory entitlement to neonatal care leave. At present, where parents need to take leave to be with their child receiving neonatal care, this can use a sizeable portion of their statutory maternity or paternity leave allowance. Often, this results in some employees having to use annual leave, compassionate leave (if available) or unpaid leave. This new act is intended to provide a new entitlement to parents and enable them to specific paid leave where neonatal care is needed, without eating into other leave entitlements or leaving them out of pocket.
There needs to be some further clarification on the final details, however, it is clear that the right to leave will be available to employees from day one of employment (for a minimum of one week and a maximum of 12 weeks), provided they have parental or ‘other personal relationship’ to the child. ‘Neonatal care’ has been defined as medical or palliative care for a continuous period of at least seven days (starting the day after care begins) that commences within 28 days following the day after the birth.
The pay provisions under this new act mirror those of maternity leave. Neonatal care pay will only be available to employees with the requisite 26 weeks’ continuous service who have been in receipt of normal earnings for a period of eight weeks prior to taking their leave. At the end of their leave, it is anticipated that employees will be entitled to return to the same job or, if not reasonably practicable for their employer, a suitable alternative on no less favourable terms.
The expected date for implementation is April 2025.
Protection from Redundancy (Pregnancy and Family Leave) Act 2023
This act is intended to extend the existing redundancy protection afforded to employees on maternity leave, shared parental leave or adoption leave. The act will extend the priority status to pregnant employees and those who have recently returned from a period of family friendly leave.
While the specifics are yet to be confirmed (secondary legislation is to be implemented ‘in due course’), the government has made clear the intention to extend the ‘protected period of pregnancy’ to include the six months following an employee’s return to work in addition to the period that they are on maternity leave. The protected period for pregnancy is expected to commence once an employee informs their employer of their pregnancy.
There is not yet any guidance on what the consequences of failing to offer a protected employee a suitable alternative vacancy are, under this act. However, it is likely that this will mean the employee has a claim for automatic unfair dismissal to mirror the existing legislation applicable to employees already benefiting from priority status. Given the extended protected period and the fact that many more employees may now be caught by it, employers will need to be extra mindful of this when approaching restructure and redundancy scenarios.
This Act is expected to come into force in 2024.
Carer’s Leave Act 2023
This act introduces a new right to one week’s unpaid leave (every 12 months) for employees who care or arrange the care of ‘dependants’ with ‘long-term care’ needs.
The definition of dependant mirrors the definition used in the legislation underpinning the right to time off for dependants and includes spouses, civil partners, children, parents, person who lives in the employee’s house (not as a tenant or lodger) or anyone who reasonably relies on the employee to provide/arrange for their care.
A ‘long-term care need’ is to be defined as a mental or physical illness/injury that is likely to require care for more than three months, a ‘disability’ under the Equality Act 2010 or care needs connected with old age.
We are expecting to see further regulations setting out whether particular activities are, or are not, to be treated as providing or arranging care. Given existing laws and guidance, it is likely that this will not be as prescriptive as some employers would like and may lead to questions and discussions on whether a leave request falls under the scope of this act or perhaps fits better with existing leave types (e.g. time off for dependants, annual leave or unpaid leave).
This Act will not see implementation before April 2024.
For more information or advice on this or any other Employment Law & HR issue, please get in touch with Laura Robinson (Associate & Solicitor) on 0115 9 100 296, or send her an email.
Posted on November 15, 2023
