New family-friendly rights – but will they be implemented in 2022?
The government has committed to introducing several new family rights following a number of consultations over the last couple of years. These include: neonatal leave and pay; carer’s leave; and extending redundancy protection for pregnant women and new parents. Outlined below are some key details from the government’s consultation responses. The government has said it will legislate to implement the new entitlements in the forthcoming Employment Bill. However, the Employment Bill was not referred to in the Queen’s Speech in May 2021 and therefore it is unclear when it will be on the legislative agenda.
Neonatal leave and pay
The introduction of neonatal leave and pay will create a new statutory entitlement for employees whose babies spend an extended period of time in neonatal care. The intention is to provide additional support for parents to deal with events that are difficult to anticipate and plan for, in recognition that the current statutory leave and pay entitlements do not adequately support them. In order to be eligible, the baby would need to be admitted to hospital at 28 days old or less for a continuous period of 7 days or more. The leave will be available to all employees, without the need to accrue a specific amount of service with their employer beforehand; however, entitlement to pay will be based on 26 weeks’ continuity of service at the relevant date and minimum earnings tests on similar lines to other family-related statutory payments. Leave and pay will be available for up to 12 weeks. The same employment rights and protections from detriment or discrimination arising from taking or seeking to take neonatal leave will apply as for parents taking other family-related leave. Employers will, of course, be able to provide more generous entitlements than the statutory entitlement if they wish to do so. The government has yet to decide about several aspects including applicable notice requirements, evidential requirements, whether both parents can take neonatal leave at the same time and the relationship with other forms of parental leave.
The government has also promised to introduce a new statutory right for unpaid carers (who tend to be mostly women) to take up to one week (5 working days) of unpaid leave per year. This will be available to take in individual days or half days up to a block of one week. Employees will be required to give notice on the same lines as for annual leave and will self-certify their entitlement, rather than being required to produce evidence. Protection will be provided against detriment or dismissal for taking or seeking to take such leave and the leave will be available to all employees, regardless of their length of service. The legislation for unpaid carers will be brought in alongside other measures to make it easier for people to work flexibly by making it a default right to request flexible working from Day 1. This consultation concluded on 1 December 2021, which indicates that it may be some time before these changes are introduced.
Extended redundancy protection
Last but not least, the government has agreed to the extension of the redundancy protection period from the point at which the employee notifies the employer of her pregnancy, whether orally or in writing. This enhanced protection will last until 6 months after the end of the employee’s maternity leave. In order to minimise the risk of disputes about when this protection was triggered, it will be particularly important for employers to ensure that a record is made of any verbal notification of pregnancy made by an employee. This protection will also be extended to those returning from adoption leave and shared parental leave (although the government is working to develop how this will operate).
Although it is hoped that these additional family rights will come into force in 2022, there is currently no timeframe for implementation. Somewhat frustratingly, the government is stating that all of these rights will be introduced “when Parliamentary times allows” and a draft of the Employment Bill is still awaited. We will have to wait and see when we will be given a more definite timescale and whether or not that will be this year.