Employment law reforms – what has changed so far in 2024?

Half of 2024 has already passed and there has been a flurry of reforms to the employment landscape even before the impending election, which may result in even more wide-ranging changes.

These have largely focused on family leave, although there have also been updates to the law around flexible working, which we have commented on previously.

Redundancy protection extended for pregnancy and family leave

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 came into force on 6 April 2024. This amended the Maternity and Parental Leave Regulations 1999 which provide that where an employee whose role is at risk of redundancy is on maternity leave, they must be prioritised for redeployment and any suitable alternative roles must be offered to them first (before they are offered to other employees whose roles are at risk).

The new Act extended that protection as follows:

1. Pregnant employees who take maternity leave

Start date of protection: date on which the employer is notified that the employee is pregnant.

End date of protection: 18 months from the first day of the employee’s estimated week of childbirth (EWC) unless the employee notifies the employer before the end of their maternity leave of the exact date they gave birth, in which case the end date is 18 months from the actual birth date.

The protection period includes any time spent on maternity or other statutory leave.

2. Employees who are pregnant and experience a miscarriage

Start date of protection: date on which the employer is notified that the employee is pregnant.

End date of protection: Two weeks after the end of the pregnancy (for pregnancies ending before 24 weeks).

Note that for pregnancies which end after 24 weeks due to miscarriage, these are classed as stillbirths and so the employee would still be entitled to statutory maternity leave (and therefore would be covered by 1 above).

3. Employees taking adoption leave

Start date of protection: Beginning of adoption leave.

End date of protection: 18 months from the date of placement of the child with the adoptive parents (for adoptions within the UK) or 18 months from the date on which the adopted child enters the UK (for overseas adoptions).

The protection period includes any time spent on adoption or other statutory leave.

4. Shared parental leave

Start date of protection: Beginning of shared parental leave (SPL).

End date of protection: at the end of the SPL period (if less than six weeks of SPL is taken) or 18 months from the child’s date of birth (if more than six continuous weeks of SPL are taken).

Note that where an employee takes maternity or adoption leave as well as SPL, the relevant protection period is the one that applies to maternity or adoption leave (as applicable), not the protection associated with SPL.

Consequently, when employees are placed at risk of redundancy and redeployment is being considered, employers must now offer the right of first refusal for suitable alternative roles to any potentially redundant employees who at that time:

1. Have given notice that they are pregnant and are still pregnant.
2. Have given notice that they are pregnant but experienced a miscarriage in the last two weeks.
3. Are on maternity leave.
4. Are on adoption leave.
5. Are on shared parental leave.
6. Have returned from maternity leave and their EWC began within the last 18 months (if they did not give notice of their actual birth date before the end of their maternity leave).
7. Have returned from maternity leave and their actual date of birth was within the last 18 months (if they gave notice of their actual birth date before the end of their maternity leave).
8. Have returned from adoption leave and their child (adopted within the UK) was placed with them within the last 18 months.
9. Have returned from adoption leave and their child (adopted from overseas) arrived within the UK within the last 18 months.
10. Have returned from shared parental leave and their child was born within the last 18 months (but only if they took more than six continuous weeks of shared parental leave).

This is much broader than the previous obligation on employers, and is likely to mean a much higher number of cases in any given redundancy process where employees will need to be prioritised for vacant roles. It also highlights the importance for employers of keeping thorough records of the relevant EWC or adoption date for prospective parents who work for them and intend to take family leave of some kind.

Failure to offer one of the above types of priority employee a suitable alternative vacancy (if one exists) would give that employee a claim for automatic unfair dismissal, which means they would not need two years’ service to bring that claim. They could also have a claim for discrimination, depending on their circumstances, which could lead to a claim for uncapped compensation.

These new protections only apply to pregnancies notified to an employer on or after 6 April 2024 and maternity/adoption leave ending on or after 6 April 2024. In respect of shared parental leave, the new protection only applies to employees taking at least six weeks of shared parental leave which begins on or after 6 April 2024.

Paternity leave

The Paternity Leave (Amendment) Regulations 2024 came into force on 8 March 2024, changing the way in which individuals can exercise their right to paternity leave.

The changes are as follows:

1. Fathers (and partners of an individual who gives birth or adopts) can take paternity leave as two one-week non-consecutive blocks, rather than having to take their leave in one go.
2. Fathers (and partners of an individual who gives birth or adopts) can take their paternity leave at any point in the first year/52 weeks after the birth or adoption of their child, rather than having to do this within 8 weeks/56 days.
3. The notice period required for an employee to give their employer before a period of paternity leave will be shortened (in most cases) to four weeks, rather than 15 weeks before the EWC. In domestic adoption cases, the notice period will still be “within 7 days of the adopter having received notice of being matched with a child”.
4. Fathers (and partners of an individual who gives birth or adopts) who have given an initial notice of paternity leave may vary any dates given on 28 days’ notice.

These changes apply to babies whose EWC, or whose expected date of placement for domestic adoption (or expected date of entry into Great Britain, for overseas adoptions), was on or after 6 April 2024.

Carer’s leave

The Carer’s Leave Regulations 2024 came into force on 6 April 2024, creating a statutory scheme under which employees can apply for up to one week of unpaid carer’s leave in any 12-month period.

The key aspects of the scheme are:

1. Employees can request carer’s leave from the start of their employment.
2. In order to qualify, employees must have “a dependant with a long-term care need” and must want to be absent from work in order to provide (or arrange) care for that dependant.

A “dependant” means:

1. a spouse, civil partner, child or parent of the employee; or
2. someone who lives in the same household as the employee but is not their boarder, employee, lodger or tenant; or
3. someone who reasonably relies on the employee to provide or arrange care for them.

A dependent has a “long term care need” if:

1. they have an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months; or
2. they have a disability for the purposes of the Equality Act 2010; or
3. they require care for a reason connected with their old age.
4. Requests can be for consecutive or non-consecutive days’ leave, and for half days’ leave or full days’ leave.
5. Qualifying employees must give notice in writing of their intention to take carer’s leave and must confirm their entitlement to take it and give notice which is twice the amount of leave requested (e.g., 2 weeks’ notice for a week’s leave), subject to a minimum requirement for three days’ notice.
6. An employer can postpone a request if the operation of the business would be unduly disrupted by giving notice of the postponement before the date on which the leave is due to begin, and they must explain the reason why the postponement is necessary. The employee must then be permitted to take their leave within one month of the original leave start-date and the employer must consult with the employee to reschedule the leave date(s).
7. Qualifying employees are protected from detriment and dismissal because they take, or seek to take, carer’s leave (or from detriment or dismissal because the employer believes that they are likely to do so).

The General Election is due to take place on 4 July 2024 and the Opposition has promised that if they win, they will make a sweeping series of reforms to employment law. Watch this space for an update on what those proposals are very soon.