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Family rights changes

On 24th May, three Government backed cross party bills received royal assent which will result in additional rights for parents and carers. In June proposals for reform of the surrogacy laws were published. Also in June, the government announced plans for minor reforms to paternity leave, whilst rejecting the possibility of wider parental leave reform.

Neonatal care

The neonatal care provisions were passed in May and will provide for up to 12 weeks of paid neonatal leave for employed parents whose children are admitted to neonatal care. This will be in addition to other parental leave provisions ensuring parents can spend more time with their child at this stressful time. Whilst this will rightly be welcomed by campaigners as a positive step, the provisions are unlikely to take effect until 2025.

Redundancy protection for pregnant women and new parents

It has long been the case that if a redundancy situation arises during an employee’s maternity leave and “it is not practicable by reason of redundancy” for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy (if available) to start immediately after the existing contract ends.

This provision is an unusual example of legal positive discrimination as it gives the employee on maternity leave priority over others in this scenario. The government consulted in 2019 over whether to extend this protection to cover the period from when the employee first notifies her employer of her pregnancy to six months after she has returned form maternity leave and has confirmed this is what it will do. Whilst the Act has come into force, further legislation is required to flesh out the provisions which the government say will happen “in due course”.

Carers leave entitlement

These new provisions will entitle employees who are caring for a dependent with long term care needs to a week of flexible unpaid leave a year. Whilst the Act has been passed, it is unlikely that the provisions will be introduced before April 2024.

Surrogacy law reform

In March 2023, the Law Commission of England and Wales and the Scottish Law Commission published a joint report outlining recommendations to reform surrogacy, together with a draft Bill to implement the recommendations. The proposals include the creation of a new legal pathway to attain legal parenthood in domestic surrogacy arrangements. This would enable intended parents to be the legal parents from the child’s birth, rather than from the making of a parental order. The pathway aims to ensure that surrogacy is the right decision for the surrogate and intended parents, and that the child’s welfare is protected.

Under the proposals the courts will be able to make a parental order without the surrogate’s consent, provided the child’s welfare requires it. A new surrogacy register would allow those born via surrogacy arrangements to access information about their origins.

Surrogacy and maternity leave

There would also be reform of employment law to ensure a surrogate is treated in the same way as any woman who is pregnant, and intended parents are treated in the same way as any other person with a new-born child. The report also recommends that one of the intended parents should have improved rights to take time off work to attend ante-natal appointments.

Parental Leave and Pay

In June 2023 the government published it’s long awaited response to a 2019 consultation on various proposals for reforming parental leave and pay. It considered several potential reforms to family-related leave and pay and is proposing:

  • The right to two weeks’ statutory paternity pay will be able to be taken in two blocks of one week and this can be taken in the first year of birth, as opposed to the first eight weeks as currently allowed.
  • Notice provisions for taking statutory leave will be changed to give more flexibility to employees.

Shared parental leave and pay

In relation to shared parental leave, many of the responses to the government highlighted the complexity of the scheme and low take up. Despite this, the government is not intending to make any changes to the regime.

The proposed changes are obviously extremely limited which will be disappointing to many. At the same time as the proposals were put forward, the DBT published a report assessing the extent to which shared parental leave has achieved its original objectives. Analysis shows that the take up remains very low. Only 1% of employee mothers and 5% of employee fathers or partners took SPL following the birth or adoption of their child.

Fertility Issues

In May 2023 the CIPD published guides for employees about supporting employees experiencing fertility issues, investigations and treatments. The guide sets out what support for those undergoing fertility issues might look like CIPD Guide to fertility issues.

Our expertise

We advise on all aspects of employment law including on issues relating to family rights in the workplace and advice on how to prevent issues arising and how to handle them if they do.

We use our exceptional breadth and depth of experience to give clients personalised advice to help manage risk and resolve issues as well as bespoke training tailored to your needs together with the use of our independent HR consultants to help put in place systems to monitor and review to minimise the risk of claims. Please contact Sara Wilson or your usual Charles Russell Speechlys contact if you would like to get in touch.

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