By Louise Lawrence, Partner at Winckworth Sherwood
On 24 May 2023, three family-friendly bills received Royal Assent: The Protection from Redundancy (Pregnancy and Family Leave) Bill; The Carer’s Leave Bill, and The Neonatal Care (Leave and Pay) Bill, which have now become Acts of Parliament.
Below, we explore what the three Acts aim to achieve and the additional rights which employees will be afforded.
Protection from Redundancy (Pregnancy and Family Leave) Act
The Act aims to enhance the protection given to employees who are pregnant or new parents in a redundancy situation, by building on the current position under the Maternity and Parental Leave Regulations 1999.
At present, if an employee is on maternity, shared parental or adoption leave and employers are considering them for redundancy, employers must offer them ‘suitable alternative employment’ where such a vacancy exists. In essence, this is a right to be prioritised for another role at the organisation over other candidates when a redundancy situation is taking place. The right to be offered ‘suitable alternative employment’ ends as soon as the employee has returned to work.
The Act extends the current protection to pregnant employees, through what it labels a ‘protected period of pregnancy’ which will be defined by secondary legislation in due course. Pregnant employees will have a right to be offered ‘suitable alternative employment’ in a redundancy situation the moment they inform their employer that they are expecting, and this protection will last for six months after returning to work from maternity leave. Pregnant employees will therefore be offered a significantly longer window of protection. A similar provision will also apply to those employees who are taking adoption or shared parental leave, lasting for six months after returning to work from the relevant family-related leave. For employees who experience a miscarriage or stillbirth, they will still benefit from protection under the Act, commencing once the pregnancy has ended though it is not clear when the period of protection would come to an end.
Carer’s Leave Act
The Act aims to allow employees to better balance their paid employment with their caring responsibilities by giving them a ‘day one’ right to take at least one week’s unpaid leave during a period of 12 months to attend to their caring responsibilities.
Caring responsibilities is referred to in the Act as ‘care for a dependant with a long-term care need’ and expands on those key terms:
- A ‘dependant’ is an employee’s spouse, civil partner, child, parent, someone who lives in the same household (excluding their boarders, employees, lodgers, or tenants) or someone who reasonably relies on the employee to provide or arrange care for them.
- ‘Long-term care need’ is an illness or injury (mental or physical) that requires or is likely to require care for more than 3 months, a disability as defined by the Equality Act 2010 or care for a reason connected with old age.
In order to request and take carer’s leave, employees will not need to produce evidence. This highlights the need for a transparent and open relationship between employers and employees, including employers having a clear written policy on how carer’s leave will function in practice. For example, the policy may cover the notice the employee has to provide to take the leave, how much an employer can postpone such a request by and the grounds on which they can do so. As with other family-related leave, employers may provide enhanced protection and grant more than a week’s leave or provide paid carer’s leave, though they are not obliged to do so.
Where an employer has either unreasonably postponed a period of an employee’s leave or has prevented or attempted to prevent the employee from taking their leave, an employee is entitled to make a complaint to the Employment Tribunal within three months of such act. The Tribunal can:
- Make a declaration to that effect
- Award compensation to be paid by the employer to the employee. In considering the amount of such compensation, the Employment Tribunal will take into account the employer’s behaviour and any consequential loss suffered by the employee.
Neonatal Care (Leave and Pay) Act
To ease the burden on parents who have children in a neonatal unit, the Neonatal Care (Leave and Pay) Act provides employees with a ‘day one’ right to take neonatal leave. This is limited to employees who have a parental or other personal relationship with a child who is receiving or has received neonatal care. Up to 12 weeks’ neonatal care leave will be available, which employees can take when their child is receiving neonatal care or at another time before the end of 68 weeks beginning with the date of the child’s birth, provided the neonatal care:
- lasts continuously for a period of at least 7 days (including the day the care begins); and
- starts within 28 days of the date of the child’s birth
The provisions mean that employees will be able to add neonatal care leave to the end of other forms of statutory parental leave that they may be entitled to therefore extending the amount of time that they can currently have off.
Whilst the Act only refers to neonatal care as care ‘of a medical or palliative kind’, it is expected further regulations will provide a more detailed definition. Further regulations are additionally, likely to deal with more practical elements of neonatal leave such as the notice to be provided or the evidence required to show entitlement to take such leave.
Employees may also benefit from up to 12 weeks’ neonatal pay if they have continuous employment of at least 26 weeks and are earning more than the lower earnings limit (currently £123 per week for 2023-2024). Further regulations will determine the rate of pay though this is likely to be the same standard rate of pay for maternity/paternity pay (currently £172.48 per week).
Next steps
The Protection from Redundancy (Pregnancy and Family Leave) Act comes into force on 24 July 2023 whereas the Carer’s Leave Act and the Neonatal Care (Leave and Pay) Act are not expected to come into force until 2024 and 2025 respectively. Given the impending change for pregnant and new parents, it is important that employers review their policies and Staff Handbook now.