Brighter Days for Care Providers?

As we enter mid-May, with the anticipation of brighter days ahead, we reflect on the many changes to employment legislation so far in 2024, particularly regulations that benefit carers and those taking family leave that became effective in April.

On 6 April 2024, the Carer’s Leave Regulations 2024 brought into effect the rights set out under the Carer’s Leave Act 2023, which provides carers with a statutory right to unpaid leave to assist in their caring responsibilities.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 also came into force on 6 April 2024, as well as amendments to paternity leave ? both of which apply to cases where the expected week of childbirth or placement is on or after 6 April 2024.

Employers are advised to ensure they have updated handbook policies and procedures following the introduction of the new carer’s leave, the changes to paternity leave and the wider protections provided for employees who are pregnant or returning from maternity, adoption or shared parental leave. The new legislation will require existing policies to be reviewed and updated and new polices to be introduced to set out the new legislation. Employers should also ensure they are raising awareness and understanding of these new changes for both managers and their workforce.

Carer’s Leave Act 2023

There had previously been no statutory right for those with caring responsibilities to take designated carer's leave. This position has now changed with the introduction of the Carer’s Leave Act 2023. Under the new law, employees now have a statutory right to one week (five working days) unpaid carer's leave in each rolling 12-month period to care for a dependant with a long-term care need. We have set out below a summary of the key rights under the new law.

• Carer’s leave is a day one right and there is no minimum service requirement before an employee can request a period of leave.
• Carer’s leave will apply to employees and is intended to allow the individual to provide or arrange care for a dependant with a long-term care need.
• The definition of “dependant” includes a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger or boarder) or the wider catchall provision of a person who reasonably relies on the employee for care.
• “Long term care” is defined as illness or injury (physical or mental) that requires or is likely to require care for more than three months, a disability under the Equality Act 2010 or issues related to old age.
• The leave may be taken in either individual days or half days, up to a block of one week. There is no requirement to use the leave on consecutive days.
• The required notice period (which does not need to be in writing) is either twice as many days as the period of leave required or three days, whichever is the greater.
• An employer cannot require evidence before granting the leave but may request an employee to self-certify that they meet the legal definition of a carer and will be using the leave to provide this care.
• Employees are entitled to return to the same job they were doing immediately before they took carer’s leave.

Employers should note that dismissal of an employee for a reason connected with their taking carer’s leave will be automatically unfair. Further, an employee will also be protected from detriment attributable to the fact that they took or sought to take carer's leave.?

An employee may also be able to bring an employment tribunal claim against their employer if they consider that their request has been unreasonably postponed, or they have been prevented from taking their leave. If such a claim is successful, the employment tribunal can make a declaration and award compensation to the employee.

Paternity Leave (Amendment) Regulations 2024

To assist in providing greater flexibility to parents, the new amendments to paternity leave regulations will allow eligible employees to take their two weeks’ paternity leave in two separate blocks of a week at any time during the first 12 months following birth or adoption. (Previously, eligible employees had to take either two consecutive weeks or one week in total and the leave had to be taken within 56 days of the birth.)

The notice provisions have also been changed so that employees will now only need to give 28 days’ notice of their intention to take paternity leave.

These changes to paternity leave will apply to all cases where the expected week of childbirth or placement is on or after 6 April 2024.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023

All employees returning from maternity leave, adoption leave and shared parental leave have the right to return to work; however there are occasions when a restructure or redundancy process may arise whilst an employee is on family leave.

Previously, employees on maternity leave, adoption leave or shared parental leave had special protection in a redundancy situation to be offered any available suitable alternative vacancy before being made redundant, giving priority to these employees over other redundant employees. This period of special protection would end on the employee's return to work.

From 6 April 2024, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will extend the period of special protection from redundancy (i.e., the right to be offered suitable alternative vacancies in a redundancy situation) for employees on maternity leave, adoption leave or shared parental leave.

Under the new legislation, the period of special protection from redundancy will be extended to apply both during pregnancy and for a period of up to 18 months following the birth or placement for adoption of a child. The extension to include protection during pregnancy will apply to employees who have notified their employer of their pregnancy on or after 6 April 2024. There is no statutory definition of the form this notice should take, but employers would be advised to ensure there is a written record.

It should be noted that where an employee notifies their employer of their pregnancy shortly before?6 April, the employee may provide a second notification to their employer after this date, so as to benefit from the extension to the protections under the new legislation.

The extension of the protected period will apply to any maternity and adoption leave ending on or after 6 April 2024. For maternity leave, the period of protection will be 18 months from the child’s date of birth if the employer is notified, or 18 months from the expected week of birth if the employer has not been notified of the date of birth. For adoption leave, the period of protection will commence at the beginning of adoption leave and will be 18 months from placement for adoption or, for overseas adoption, 18 months from the date of entry into the UK.

For those taking shared parental leave who have not taken maternity or adoption leave, the extension of protection will cover 18 months from birth provided that a six-week threshold of continuous shared parental leave is taken.

For the avoidance of doubt, the new legislation is not a ban on making employees redundant during the period of special protection from redundancy, but does impose an obligation to offer a suitable alternative vacancy to those employees afforded special protection. Where an employer fails to do so, the employee has a claim for automatic unfair dismissal (with no requirement for two years’ qualifying service). In addition, the employee may also have a discrimination claim, for which the compensation awards are uncapped, so employers must be mindful of the extension to the period of special protection or risk a potentially costly claim.

Notwithstanding the risks of an employment claim, it will be key for employers to be aware of the extension of special protection if they are considering a restructure or implementing redundancies given that employees who fall under these special protections could be protected for up to two years. For example, if an employee advises their employer they are pregnant early in their pregnancy, they will be covered during their pregnancy and an additional 18 months from the child’s birth date or expected week of birth (if the employee takes a full year of maternity leave).

Employers are advised that they should now start looking at:

• ?Keeping up-to-date and accurate records in order to calculate the extended protection periods;
• Reviewing their family leave and redundancy policies; and
• Ensuring all managers undertaking redundancy processes are trained and made aware of the special protections.

?As a final point, there has been commentary regarding the increased likelihood of having more than one employee who falls under the special protections during a redundancy process. There has previously been little legislative or judicial guidance on how to deal with the situation in which there are more employees eligible for preferential treatment than suitable alternative vacancies, and the new legislation does not provide any guidance on this point. Employers would be advised to seek guidance on navigating this scenario given the inherent risks, including the likelihood of a discrimination claim. We are very happy to help assist in providing the options to be considered should this scenario arise or if you require any assistance with implementing the new legislation.

Much like the current UK weather, UK employment legislation will continue to change throughout the year and we will continue to keep you updated.?