Employment law bulletin: updates to flexible working, redundancy protection and carer’s leave

In the first of her new monthly bulletins, Raconteur’s resident employment law expert Jo Mackie unpacks the latest legislative and regulatory changes and what it means for your business

Employment Law Bulletin 1

Many HR leaders will have 6 April circled on their calendars as it marks the date a number of new employment law rights come into force. 

These changes to legislation will go some way to strengthening and formalising flexible working rules, as the UK continues to adjust to the new ways of working that have emerged since the Covid-19 pandemic. And each will undoubtedly impact your business.

Here are the three main changes that employers need to be aware of.

Employment Rights (Flexible Working) Act 2023

Under the new regime, employees will be entitled to request flexible working from the first day of their employment, rather than after 26 weeks as is currently the case. Flexible working includes requests for part-time, term-time, flexitime, compressed hours, and varied working locations such as hybrid or working from home.

All employers need to be aware that, under the new regime,

  • They must explain the business reasons behind any decision to reject a request for flexible working 
  • They must respond to flexible working requests within two months, compared to three months previously
  • Employees can make two statutory requests for flexible working in any 12-month period, rather than being limited to one annual request, as was previously the case

On a practical note, the implication for HR teams that manage flexible working requests is clear. These new rights represent a potential doubling of their workload meaning capacity may be an issue, especially as tighter timescales apply for employers to make their decision.

Protection from Redundancy (Pregnancy and Family Leave) Act 2023

Currently, employees on maternity leave, shared parental leave or adoption leave have extra protection compared to those who are not in redundancy situations. For example, a woman on maternity leave is in a so-called ‘protected period’ during that time. During this protected period, any unfavourable treatment of her because she is pregnant or on maternity leave is unlawful. 

From 6 April, this legislation extends that extra protection to pregnant employees (who no longer must be on maternity leave) and those who have recently returned from maternity, adoption or shared parental leave. Practically, this will mean that a pregnant woman who takes maternity leave will be protected for 18 months from the child’s date of birth if they notify their employer before the end of maternity leave. 

Employers need to take great care to ensure that any pooling of staff for redundancy consultation does not include periods of family leave as a factor, for example.

Carer’s Leave Act 2023

The Carer’s Leave Act 2023 makes provision for unpaid leave for employees who have caring responsibilities for dependants.

From 6 April, carer’s leave will be available to all employees without any qualifying period (therefore it applies from day one) and will apply to anyone caring for a spouse, civil partner, child, parent or other dependant. That dependant must need care because of a disability, old age or any illness or injury likely to require at least three months’ care. 

While carer’s leave is unpaid, it obviously has the potential to disrupt business and service provision. The government appears to acknowledge this by limiting carer’s leave so that the maximum duration permitted is one week per year. Note than an employer cannot deny an employee’s request for carer’s leave. 

However, in a further nod to the potential for business disruption, an employer can postpone carer’s leave if they reasonably consider that the operation of the business would be unduly disrupted if it were approved. The employer needs to have a reasonable belief in the business disruption and, while this has yet to be tested, a note of why this is the case and what consideration has been put into any decision to postpone will support an employer if an employee takes action against them for refusing a specific date.

These changes are all intended to give flexibility and protection to employees. There has been some flexibility and discretion given to employers – most notably in the right to postpone carer’s leave – however, with these changes, there is the potential to impact your business and to increase the workload on HR teams.

Jo Mackie is partner and head of employment at Lawrence Stephens