People, Culture and Law Conference 2023 - Legal Update

Legal Update: New Rights for Flexible Working, Predictable Working and Family Leave Louise Lawrence, Partner and Harriet Calver, Senior Associate

November 2023

Legal Update Flexible Working Predictable Working Carer’s Leave Neonatal Leave

Protection from redundancy for new parents

Expected timeframes for implementation of the new laws April 2024

Protection from redundancy for new parents

July 2024

Flexible Working

September 2024

Predictable Working

2024

April 2025

Carer’s Leave

Neonatal Leave

Flexible Working

Flexible Working Employment Relations (Flexible Working) Act 2023

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Changes to the current law on flexible working: o When making a request, employees no longer have to explain what effect their requested change would have on the employer and how this could be dealt with o Employees can make 2 requests in a 12-month period (previously 1) o Employers have to consult with employees before rejecting a request (new requirement) o Employers have 2 months to make a decision (previously 3 months)

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Not covered by this legislation but the right to request flexible working is expected to become a “day 1” right

Recent Flexible Working Case Mr P Corke v Department for Transport (2023) • Claimant argued that his request to change his work location from London to his home in Luxembourg should be treated as a request for flexible working within the statutory regime • The Tribunal determined that the statutory right to request to work from “home” means home within the UK and the Claimant’s application to work full-time from his home outside the jurisdiction did not fall within the statutory regime

Predictable Working

Predictable Working Workers (Predictable Terms and Conditions) Act 2023 •

Currently there is no statutory right to request a predicable work pattern

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The Taylor Review in July 2017 identified a problem of “one sided flexibility

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The new legislation will address this issue by providing a statutory right for workers and agency workers to request more predicable terms and conditions of work

Eligibility – who can make a request?

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A worker will be able to make a request if all of the following circumstances apply: o They have the necessary qualifying service (expected to be 26 weeks) o There is a lack of predictability in relation to the work that the worker does for the employer, as regards any part of the “work pattern” o The change relates to the worker’s work pattern o The worker’s purpose in applying for the change is to get a more predictable work pattern

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Fixed term contracts of 12 months or less o

Presumption of lack of predictability as regards to the period of work

o Will be possible to apply for longer fixed term or the removal or restriction in duration

The Application Process Note it is a right to request a change, not a right to the change.

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The application must state that it is an application for predictable work pattern, specify the change and the date on which it is proposed it will become effective

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Employer must deal with the application in a “reasonable manner” and notify the worker of the outcome within one month

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Employer may reject the application only if they consider one or more of the following grounds to apply:

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(i)

the burden of additional costs

(ii)

detrimental effect on ability to meet customer demand

(iii)

detrimental impact on the recruitment of staff

(iv)

detrimental impact on other aspects of the employer’s business

(v)

insufficiency of work during the periods the worker proposes to work

(vi)

planned structural changes

(vii)

such other grounds as the Secretary of State may specify by regulations.

Limit of 2 applications in any 12 month period for the purpose of improving predictability.

Agency Workers •

Agency workers will also be able to request predictable working patterns, applying to the temporary work agency or the “hirer”‘ (end user business)’ for a more predictable working schedule

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Different rules apply depending on whether the application is to a temporary work agency or hirer: o

Temporary work agency: they must have had a contract with the temporary work agency at some point during the month preceding the prescribed period (likely to be 26 weeks)

o

Hirer - they have worked for that business in the same role for 12 continuous calendar weeks and they are still in that role when they apply

Complaints and Remedies •

Claim on the basis of one or more procedural failing by the employer/hirer/temporary work agency e.g. they failed to deal with the application in a reasonable manner. o

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Remedy: A declaration, an order for reconsideration and compensation of such amount as the Tribunal considers just and equitable up to the “permitted maximum” Unlawful detriment claim

o •

Remedy: compensation of such amount as the Tribunal considers just and equitable in the circumstances Automatic unfair dismissal claim

o

Remedy: compensation of such amount as the Tribunal considers just and equitable, subject to statutory cap

Carer’s Leave

Carer’s Leave Carer’s Leave Act 2023 •

Unpaid leave for employees who are providing or arranging care for a dependant with a long-term care need

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A ‘dependant’ is:

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o

An employee’s spouse, civil partner, child or parent

o

Someone who lives in the same household (excluding boarders, employees, lodgers, or tenants)

o

Someone who reasonably relies on the employee to provide or arrange care for them

‘Long-term care need’ is: o

An illness or injury (mental or physical) that requires or is likely to require care for more than 3 months

o

A disability as defined by the Equality Act 2010 or

o

Care for a reason connected with old age

Carer’s Leave •

“Day 1” right

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Can take leave in full or half day blocks

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At least 1 week during any period of 12 months (TBC)

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Will have to give notice of intention to take leave

Case about carers Follows v Nationwide Building Society (2018) •

Mrs Follows was a carer for her disabled mother

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Employed as a Senior Lending Manager (SLM) on a homeworker contract

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Nationwide decided SLMs could no longer work from home on a full-time basis and needed to be based in the office full-time

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As Mrs Follows could not comply with this requirement she was dismissed

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She was successful in her claim for indirect associative disability discrimination:

o

Nationwide’s requirement put carers in general at a disadvantage

o

It put Mrs Follows at a substantial disadvantage as she was her mother’s principal carer

o

There were other non-discriminatory means of achieving Nationwide’s aim of having effective on-site managerial supervision and support to more junior staff including working from home and attending the office for 3 days a week (as Mrs Follows had been doing)

Neonatal Care Leave and Pay

Neonatal Care Leave and Pay Neonatal Care (Leave and Pay) Act 2023 (NC(LP)A) •

Currently parents with children receiving neonatal care have to use their existing maternity/paternity/annual/compassionate leave entitlements while their baby is in hospital

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The new legislation seeks to address this issue by provide additional paid time off for parents when baby is in neonatal care

Neonatal Care Leave •

No qualifying period - neonatal care leave will be available to employees from their first day in employment

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For parents of a baby who is receiving or has received neonatal care for more than seven days within the first 28 days of life

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The minimum amount of leave to be taken will be one week but the maximum is as yet unconfirmed, although this is expected to be up to 12 weeks

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Leave must be taken within 68 weeks (approximately 16 months) starting with the date on which the child was born

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The employee’s rights during statutory neonatal leave are expected to be similar to an employee’s rights during maternity leave

Neonatal Care Pay •

Statutory neonatal pay at the prescribed rate will also be available for parents with at least 26 weeks’ continuous service ending with the “relevant week” and who meet the minimum earnings criteria

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Prescribed rate expected to be the same as for other statutory familyrelated leave

Redundancy Protection

Protection from Redundancy for new parents Protection from Redundancy (Pregnancy and Family Leave) Act 2023 •

The New Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends the redundancy protection which currently applies to women on maternity leave

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It extends the protection from when a woman tells her employer she is pregnant until six months after she has returned to work

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The same enhanced protections will apply to those during and returning from Adoption Leave and Shared Parental Leave

THANK YOU Louise Lawrence Partner llawrence@wslaw.co.uk 020 7593 5082

Harriet Calver Senior Associate hcalver@wslaw.co.uk 020 3735 1897