Clearly, there was no early driving home for Christmas for civil servants this week as three sets of draft regulations were laid before Parliament. The good news is that there are no unforeseen surprises in the regulations. Not so good is the fact that the regulations come into force from April 2024 so policies will need to be amended in the new year. It’s going to be a busy first quarter of 2024 for HR teams. We’re not driving home anytime soon either so here’s a run down of the new regulations and their practical implications. 

What are the new regulations?

• Flexible Working (Amendment) Regulations 2023
• Carer’s Leave Regulations 2024
• Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024

Flexible Working (Amendment) Regulations 2023

Headline – the right to request flexible working will be a day one right from 6 April 2024. 

These new regulations remove the 26 weeks continuous employment requirement from the Flexible Working Regulations 2014. From 6 April 2024, all employees from day one of their employment will be entitled to request flexible working. 

The additional changes to the statutory right to request flexible working as outlined in our blog here as per the Employment Relations (Flexible Working) Act 2023 are yet to be laid before Parliament. But we expect them in the new year with a commencement date of 6 April to tally with these regulations. They tweak the existing system but the reasons an employer can give for refusing a request remain the same.  

Action points

• Amend flexible working policy to reflect these changes.
• Inform employees of these changes reiterating that it is a day one right to request not a day one right to flexible working.
• Look out for the ACAS updated statutory Code (expected anytime) and ensure any policy and procedure takes account of the Code and the non-statutory guidance which sits beside it.

Carer’s Leave Regulations 2024

Headline – eligible employees will be entitled to a week’s carer’s leave from 6 April 2024

These regulations bring into force the Carer’s Leave Act 2023 – the details of that Act are found in our blog here. Eligible employees will be entitled to a week’s carer’s leave (unpaid) in any 12 month period to arrange care for a dependent with a long-term care need (see definitions of these in our blog). The regulations have clarified the following points:

• A week is a seven-day period starting at midnight between Sunday and Monday and a day is a period of 24 hours starting at midnight.
• The leave does not have to be consecutive days but can be broken up – the minimum period is half a working day and the maximum one continuous week.
• A working day means the period in which an employee is normally expected to work on the day the leave is taken.

This will be relatively easy to work for staff with regular working hours and patterns but the calculation of a week’s leave is more problematic for variable hours employees. The regulations state that in those cases, an employer should make the following calculation: the total of the periods (that could be calculated in hours or days we presume) for which the employee is normally required to work during the course of the week within the relevant period (52 weeks) divided by 52. Where an employee has less than 52 weeks’ service during the relevant period, then the calculation is the total number of periods within the number of weeks they have been employed divided by the number of weeks they have been employed. In simple terms, this appears to calculate their average working days/hours each week.

For zero-hours employees where this will be the most problematic, practically it makes more sense for them to chose not to work on days when they know they are going to be required to care for dependents: the leave is unpaid (unless there is a contractual paid equivalent) and so financially it will make no difference. 

Notice requirements

An employee does not have to provide evidence of their dependent’s condition but must give notice stating the following:

• Confirm that the employee has a dependent with long-term health needs.
• Specify the days when leave is required and/or what part of a day.

Notice must be given to the employer before the relevant date and can relate to the total amount of leave required or just a part. The relevant date is twice as many days in advance as the number of days required or three days, whichever is greater. That said, there does seem to be leeway under the regulations for providing leave even when insufficient notice is given, as long as the other requirements are met. 

An employer can postpone the leave when it reasonably considers that the operation of their business would be ‘unduly disrupted’ if the leave was taken. But an employer must give notice of the postponement and consult with the employee and permit the leave to be taken within one month of the earliest date of the first suggested leave. An employee can bring a complaint to a tribunal if an employer unreasonably postpones, prevents or attempts to prevent the taking of carer’s leave. The complaint must be made within three months and a tribunal can make a declaration or award compensation. This is in addition to the protection against detriment or dismissal for taking carer’s leave that we noted in our blog. 

Action points

• Add this leave provision to your statutory leave (or equivalent) policy.
• Inform staff and ensure managers are aware of the new right.
• Consider whether want to make any contractual paid entitlement to carer’s leave if you have similar entitlements in your statutory leave policy, if you do this you will need to add carer’s leave to the ‘other types of paid leave’ section in your contracts to remain compliant with Section 1 of the Employment Rights Act 1996.

Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2023

Headline – the period in which parents have added protection from redundancy is extended from 6 April 2024 

These regulations (as per our blog) bring into force the provisions of the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. Currently, parents on maternity leave and adoption leave are entitled if at risk of redundancy whilst on leave, to be offered a suitable alternative vacancy, as a priority over and above any other colleagues who are not similarly on maternity or adoption leave. This Act extends this period out and introduces a similar provision for parents on shared parental leave. 

Maternity leave 

For employees on maternity leave the right will be extended for the following period:

• the protected period - from when they inform their employer of their pregnancy (that could be at the end of a pregnancy in the event of a miscarriage or other baby loss) and ends on the day statutory maternity leave commences; and
• statutory maternity leave (SML); and
• additional protected period - this starts with the day after the last day of the SML and continues until the date 18 months after either the first day of the expected week of childbirth or the day of birth if the baby was premature. 

This amended right will affect all employees who inform their employers of their pregnancy on or after 6 April 2024 or those currently on SML where their leave ends on or after 6 April 2024. 

Adoption leave

For employees on adoption leave the right will be extended for the following periods:

• statutory adoption leave (SAL); and 
• additional protected period – day after the last day of SAL and continues until 18 months after the date the child was placed for adoption.

This amended right will affect employees whose SAL ends on or after 6 April 2024.

Shared parental leave (SPL)

The extended right to be offered a suitable alternative role is given to parents on SPL for the following periods;

• shared parental leave period - provided that is more than six consecutive weeks*; and 
• additional protected period – starts the day after the six-week minimum SPL and ends 18 months after the day the child was born or placed with the employee for adoption. 

This extended period of protection will only apply to employees who have not taken maternity or adoption leave. 

This amended right will affect employees whose six-week consecutive SPL ends on or after 6 April 2024 or employees whose six-week consecutive period of SPL starts on or after 6 April 2024. 

*If an employee takes less than six weeks SPL they are still entitled to the additional protection from redundancy for that period of SPL.

 Action points 

• Update your relevant policies.
• Update redundancy procedures to reflect this enhanced right.
• Note all employees who are currently away on maternity/adoption leave or SPL and consider whether this will affect them and if so what steps need to be taken.