Opinion

It's time to review your family friendly policies ahead of forthcoming changes

Published Date
Mar 21, 2024
Related people
From 6 April 2024, new rules affecting a number of family friendly rights will come into force.

The new and revised statutory duties on flexible working, paternity leave and carer’s leave will necessitate a review of existing policies and training of managers to ensure that they are up to speed with the new legal requirements. In addition, employers facing redundancy situations will have to take account of the extended protections available for new parents. 

However, beyond the initial administrative time required to introduce the changes, what is the longer-term impact for employers?

Flexible working

The right to request flexible working remains just that – a right to request, rather than a right to be granted flexible working.  However, with employees now entitled to make requests from ‘day 1’ of their employment, and the number of individual requests having increased from one to two per year, employers may find themselves having a larger volume of applications to manage. The timeframe to respond has also been reduced to two months (however, as with the old rules, an extension of time to respond to a request may be agreed in writing between the parties), and an employer must consult with the employee about the request before rejecting it. It is possible, therefore that the changes could increase the time and resources required to be given by managers and HR teams to flexible working applications. The changes also come at a time when we are seeing an up-tick in the number of employers changing existing hybrid working practices to mandate for greater in-office working. Employees who wish to retain the status quo of existing working arrangements may lean on their right to request flexible working in a bid to protect home working arrangements. However, it remains that an employer can legitimately say no to a flexible working request, if it can demonstrate careful consideration of the request, and reliance on one of the eight statutory reasons for refusal. Justification for refusing a flexible working request will always be strongest when grounded in sound, objectively based business reasons. 

Acas has updated its existing Code of Practice on how to handle a statutory flexible working request, to take account of the changes. A copy is available here. 

Paternity leave

Changes to existing statutory paternity leave provisions will take effect in respect of babies born on or after 6 April 2024. The changes provide eligible employees with greater flexibility on when they can take paternity leave (paternity leave can now be taken up to one year after the baby is born, compared with the previous requirement that it be taken within the first eight weeks) and how they can take it (the two-week entitlement can now be taken in separate one-week blocks). The notice required to be given to take a period of paternity leave has also been reduced to 28 days, or four weeks before the proposed period of time to be taken off.

The changes to statutory paternity leave are minor in nature and the overall pot of available leave has not been increased, meaning there should be no additional financial burden placed on employers as a result. 

Carer’s Leave

Employees who have caring responsibilities for a dependant with a long-term care need will now be able to avail of up to five days leave each year, which can be taken in a complete block, or in parts. A dependant is considered to have a long-term care need if:

  • they have a physical or mental illness or injury which is likely to require care for more than three months; 
  • they are disabled under the Equality Act 2010, or
  • they require care in connection with their old age. 

The right to carers leave should be clearly distinguished from existing rights to time off to help a dependant, which is intended to address an emergency, or unexpected event, such as a school closure or a child having a short-term illness or injury. We do not anticipate that the introduction of this entitlement is likely to adversely impact business operations or generate additional costs – an employer may postpone carer’s leave and arrange with the employee for that leave be taken at a later date, so long as it is within one month of when the employee originally wanted to take it.

There is also no legal requirement for carer’s leave to be paid, although many employers may choose to offer pay during all, or part of the period, particularly if is company practice to do so in respect of other types of paid leave. In addition, providing some payment for carer’s leave could act to reduce instances of sickness absence, or use of annual leave, which employees may currently be utilising to fulfil responsibilities as a carer at home.

Extended redundancy protection

In keeping with the theme of improving family friendly rights and protections, new parents will also benefit from enhanced redundancy protection. Under existing legal requirements, employers faced with making redundancies must offer any suitable alternative employment to an employee on maternity, adoption or shared parental leave first. However, this legal protection will now be extended so as to begin, in the case of pregnancy and maternity, from the point the employee informs their employer of their pregnancy. For new parents, protection will continue during maternity, adoption or shared parental leave and for an additional protected period after they return to work, up until 18 months after the birth of the child (or placement, in cases of adoption).

With an extended pool of employees now having legal protection, employers could face the challenge of having more employees with protected priority status than the number of suitable alternative roles available. There is no legislative clarity or additional guidance on what should be done in these circumstances, so employers will have to carefully consider the approach they take to internal recruitment and selection process for alternative roles if this situation arises.

 

Content Disclaimer
This content was originally published by Allen & Overy before the A&O Shearman merger