In our virtual Employment Law Seminar, we predicted that 2023 would be a big year for developments in employment law, and already we have seen the introduction of the Seafarers Wages Act 2023 and the Employment Allocation of Tips Act 2023, and many of the pending employment bills progressing through parliament swiftly.
In the latest developments, it has been announced that the Carer’s Leave Bill, the Neonatal Care (Leave and Pay Bill), and the Protection from Redundancy (Pregnancy and Family Leave) Bill have all been given Royal Asset and are all now statutory rights. This article sets out what these new laws mean for employers.
Carers Leave Bill
According to data from the 2021 Census published by the Office of National Statistics recorded 5 million people provided unpaid care each week, broken down as follows:
- 1.8 million people provided 9 hours or less of unpaid care per week
- 678,000 provided between 10 and 19 hours of unpaid care
- 483,000 provided between 20 and 34 hours of unpaid care
- 552,000 provided between 35 and 49 hours of unpaid care and
- 1.5 million people provided more than 50 hours per week of unpaid care.
This legislation will now give employees the statutory right to take one week of unpaid leave in any 12-month period to provide or arrange care for a dependant with a long-term care need, and not to be dismissed or victimised for doing so.
It is a day one right for all employees, no qualifying period is required, and the legislation states that a ‘week’s leave’ is to be determined by reference to the number of days normally worked or required to be worked in a particular period. For example, a part time employee working a three-day week, would be entitled to three days of carer’s leave in any 12-month period.
The definition of a dependant is as defined in the Employment Rights Act 1996 when taking emergency time off for dependants.
The long-term care need, that the dependant would need to have for the employee to qualify for the statutory leave, is also defined. The legislation defines this as:
- any physical or mental illness or injury that requires or is likely to require care for more than three months.
- a disability as defined within the Equality Act 2010.
- a long-term care need that is connected with their old age.
Finally, under the legislation, an employer cannot require an employee to provide evidence in a relation to a request for leave before granting the absence. It is a matter of trust that by providing notice to their employer of their request for leave, that the employee does so knowing that the nature of their absence is in line with their entitlements. This is why having a Carer’s Leave Policy will be vital so that the criteria and eligibility for the leave can be clearly set out.
There is no date yet as to when this law will come into effect, although we expect it to be in 2024.
Neonatal Care (Leave and Pay) Act 2023
We also have new legislation entitling employees to take a period of leave of absence when their baby requires neonatal care. Neonatal care is care that is medical or palliative and would apply to someone with parental or other personal relationship with a child that is to receive or has received neonatal care.
This new entitlement gives all employees the right to the statutory leave from day one of employment, but the entitlement to statutory neonatal pay will require the employee to have at least 26 weeks service and be in receipt of earnings that are at least the current lower earnings limit (currently £123 per week).
The leave entitlement can start from the day after the child’s birth but before the end of a period of 28 days (i.e., new-borns up to the age of 28 days) and must continue without interruption for at least 7 days. The length of leave and amount of statutory will be based on how long the baby requires neonatal care up to a maximum of 12 weeks.
A commencement date has not yet been set as to when this new entitlement comes into effect. We shall continue to monitor the tracking of all employment law and provide updates as appropriate.
Protection from redundancy (Pregnancy and Family Leave) Act 2023
Currently, section 10 of the Maternity and Parental Leave Regulations 1999 states that where an employee is made redundant during their maternity leave, they are entitled, as a matter of right, to be offered, before the end of their employment under their existing contract, any suitable alternative employment in preference to and priority over other employees, who are not on maternity leave. There are similar requirements for employees on adoption leave and share parental leave.
There are no exemptions, and the rules are the same for all employers, irrespective of size. To date, the law has only applied this protection for the period of maternity leave only (does not include during pregnancy or upon the return to work).
The suitable alternative role must involve work that is suitable to the employee and appropriate for them to do in the circumstances, the terms and conditions and place of employment and must not be substantially less favourable than their existing contract.
The role must clearly be offered and leave no doubt about it being an offer of new employment and must not simply be an invite for them to apply. Failure to make an offer of suitable alternative employment, or if it is offered to someone who is not on maternity leave would make the redundancy dismissal automatically unfair.
However, under new protection rights that have now been introduced in the Protection from Redundancy (Pregnancy and Family Leave) Act 2023, we will soon see changes to this area of law that will also apply to employees on adoption and shared parental leave.
The Protection from redundancy (Pregnancy and Family Leave) Act 2023, will extend this protection:
- To a redundancy that occurs during or after pregnancy or other periods of maternity, adoption or shared parental leave.
- The extra protection from redundancy would begin when an employee notifies their employer of their pregnancy (not from when maternity leave begins, which is currently the case)
- The protection will end when the child is eighteen months old
This law was passed 24 May 2023, although we don’t have a commencement date for when it takes effect.
We expect further employment law developments over the coming months, these are just some to keep a watch out for:
| Name of Bill | Overview | Current stage |
| The Social Housing (Regulation) Bill | A Bill to make provision about the regulation of social housing including the standards relating to competence and conduct. | NB: This started in the House of Lords.
Consideration of the Commons Amendments – date TBC |
| Retained EU Law (Reform and Revocation) Bill | A Bill that would revoke certain retained EU law. | An open consultation is ongoing until 7 July, seeking views on the proposals relating to the working time regulations, TUPE and holiday leave and pay. |
| Strikes (Minimum Service Levels) Bill | To require employees to work a minimum number of hours before being able to go on strike | Consideration of the Lords amendments taking place in May in the House of Commons |
| Worker Protection (Amendment of Equality Act 2010) Bill | Make provision in relation to the duties of employers regarding sexual harassment, including harassment by a 3rd party. | Committee Stage – date TBC |
| Employment Relations (Flexible Working) Bill | Introducing changes to flexible working rights. | Committee Stage – date TBC |
| Pensions (Extension of Automatic Enrolment) Bill | Automatic pension enrolment to jobholders under the age of 22. | 2nd Reading – date TBC |
| Employment and Trade Union Rights (Dismissal and Re-engagement) Bill | Amend the law around workplace information and consultation and safeguards against dismissal and re-engagement. | NB: This started in the House of Lords.
2nd Reading Date TBC. |
We are here to help
We appreciate changing legislation can be difficult to navigate. If you need help with updating your HR policies and procedures, our expert team can assist. We can work with you on a retained basis (including unlimited advice) or, provide support with a specific project.
Contact us on 0844 324 5840 or book a call with us here.
