Best for Baby and Best for Business – New Workers’ Rights for Parents and Carers

In a nutshell:

Parents and unpaid carers are to be given new protections at work, covering leave entitlement and redundancy rules.

1. Extended redundancy protection which provides enhanced rights to employees who are at risk of redundacy while pregnant on maternity/adoption/shared parental leave but also for new parents returning to work. This is intended to protect new parents and expectant mothers from discrimination in the workplace as well as providing them with more job security.
2. Up to 12 weeks of paid neonatal care leave – this is for employed parents whose newborn baby has been admitted into neonatal care. This would be in addition to their usual family leave entitlments such as maternity and paternity leave.
3. Carer’s leave for employees who provide care to a dependant with a long term condition. Under the Carer’s Leave Act 2023, they will be entitled to one week of flexible unpaid leave per year.

This wave of new workers’ rights has been welcomed by charities and parties across parliament. Whether it will be welcomed by employers remains to be seen but, suffice to say having received royal assent at the end of May, these new rights are coming soon to a workplace near you!

The government says that, when in force, these new laws will help to increase workforce participation, protect vulnerable workers, and level the playing field by ensuring unscrupulous employers don’t have a competitive advantage whilst delivering on the government’s priority to grow the economy. Let’s hope so….

The bigger picture:

1. Protection from Redundancy (Pregnancy and Family Leave) Act 2023:

The Equality Act 2010 prohibits pregnancy and maternity discrimination. Research published by the Equality and Human Rights Commission (EHRC) on the prevalence and nature of pregnancy discrimination and disadvantage in the workplace uncovered some stark statistics relating to managing pregnancy, maternity leave and mothers returning to work. The majority of employers reported that it was in their interest to support pregnant women and those on maternity leave because it increased staff retention and created better employee morale. However, the reality of the situation was borne out by key findings that:

• Three in four mothers said they had a negative or possibly discriminatory experience during pregnancy, maternity leave, and/or on return from maternity leave – that’s as many as 390,000 mothers each year.
• Around one in nine mothers reported they felt forced to leave their job due to dismissal, redundancy or poor treatment leaving them feeling they had to leave their job - that’s 54,000 mothers a year.
• One in five mothers said they had experienced harassment or negative comments related to pregnancy or flexible working from their employer and/or colleagues - as many as 100,000 mothers a year.
• One in ten mothers said their employer discouraged them from attending antenatal appointments - this could mean up to 53,000 mothers a year.

On a positive note, the education sector fared better than most, with fewer mothers reporting feeling forced to leave their jobs or suffering harassment or negative comments or a negative experience related to a flexible working request.

Under the current law, parents enjoy ‘enhanced protection’ against redundancy only whilst actually on maternity leave, adoption leave or shared parental leave. This protection is not against being made redundant per se but rather gives priority when it comes to offering suitable alternative employment to those at risk of redundancy - ‘first refusal’ on any suitable alternative vacancy must be given to those staff on maternity leave, adoption leave or shared parental leave who are at risk.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will extend this ‘enhanced protection’ against being made redundant to mothers from the point they tell their employer they are pregnant, and for a defined period after new parents return from maternity leave, adoption leave or shared parental leave. Regulations will set out the length of this protected period. The Government currently envisages that this will run for 18 months from the start of the statutory leave period.

Whilst the Act will come into force at the end of the period of two months from 24 May 2023, no implementation date has been set due to the need for further regulations. The government says that these regulations will be laid before Parliament “in due course”. These new rights are therefore unlikely to come into effect before April 2024.

2. The Neonatal Care (Leave and Pay) Act 2023:

Business Minister Kevin Hollinrake said, “We know how stressful it can be for parents caring for a new-born in neonatal care, or someone who is trying to juggle work with caring responsibilities, and these additional protections will ensure they get the support they need”.

This new regime is for employed parents whose new-born babies are admitted to neonatal care, so that they can spend more time with their baby at what is obviously a hugely stressful time. This right will be in addition to other leave and pay entitlements such as maternity and paternity. The government says this makes the UK as a world leader in this area, allowing parents to be with their babies instead of worrying about work.

The new statutory entitlement will be complex to implement, requiring seven new statutory instruments, according to government sources, and no doubt supporting government guidance. Changes will also need to be made to HMRC systems and employers’ and payroll providers’ pay systems. We are therefore unlikely to see implementation before April 2025.

The intention behind the Neonatal Care (Leave and Pay) Act is that a parent whose baby is admitted to neonatal care (within 28 days from the day after birth and for at least seven days) will have a new ‘day one’ statutory right to take neonatal care leave. The maximum length of the leave and the eligibility conditions will be set out in regulations. However, government indications suggest that the maximum period of leave will be set at 12 weeks (in addition to other leave entitlements, such as maternity and paternity leave).

Parents will be able to take neonatal care leave either when their baby is receiving neonatal care or afterwards, for up to 68 weeks from the birth. Given that statutory maternity leave will normally have started by the time the baby is admitted to neonatal care, parents will be able to add the leave to the end of other forms of statutory parental leave to which they may be entitled.

In addition, parents taking neonatal care leave who have at least 26 weeks’ continuous service will be entitled to neonatal care pay, subject to eligibility conditions which are likely to be similar to other types of statutory pay. It is thought neonatal care pay will be calculated at the normal flat rate for statutory pay, rather than the enhanced rate that applies to the first six weeks of statutory maternity pay.

3. The Carer’s Leave Act 2023:

The Carer’s Leave Act will create a new statutory unpaid leave entitlement for employees who are caring for a dependant with a long-term care need.

The government has recognised that charities have been calling for further support for carers. It says, there are millions of unpaid carers in the UK, and the Carer’s Leave Act will provide the support they need to continue with their invaluable contribution to society. Once in force, they won’t have to struggle between caring for the ones they love and working to provide for their families. Whether this is true or not remains to be seen. However, given the limitations of the new right, it is tempting to be sceptical about whether it goes far enough.

The Carer’s Leave Act creates a new ‘day one’ right to unpaid leave to provide or arrange care for a dependant with a long-term care need. The leave may be taken in increments of half-days or individual days, totalling up to a week in each year of employment. ‘Long-term care need’ is expected to cover:

• Illness or injury that requires, or is likely to require, care for more than three months.
• A disability under the Equality Act 2010.
• Care for a reason connected with old age.

The definition of a ‘dependant’ is broad and is likely to extend to anyone the employee provides care for someone with a long-term care need. This will be different from statutory ‘dependant's leave’, which is for emergencies only, and statutory ‘parental leave’, which is only for childcare purposes. The new right provides a small amount of additional flexibility for employees who are carers of adult dependants and offers protection from any detriment or dismissal as a result of exercising their statutory right to carer’s leave.

Whilst employees will not be expected to provide evidence of how the leave is to be used, the fact remains that it will be unpaid. Employers could provide for paid leave for carers as part of their employment policies, should they wish to. It remains to be seen whether the new unpaid leave right will be attractive to employees and/or frustrating for employers denied the right to evidence of the reason for the leave.

Again, regulations will be required to implement the Carer’s Leave Act. Given that it is the simplest of the three to implement, it is likely that this new right will be in place by April 2024.

What next?

The government has only hinted at provisional timescales for when these new family-friendly laws will come into effect. For now, you should start planning for updates to any Employee Handbooks and/or Family Friendly Policies. Just People HR will, of course, continue to provide updates on the timescales as soon as we know them and we can also help you with any policy revisions required, to ensure you remain legally compliant.

If you would like to have a conversation about how our team can support you and your school around the coming changes to the law on family-friendly working, please contact one of our team here at Just People HR.