In the UK, 2022 could bring further improvements for working families. Several new family friendly rights are due to be introduced as part of the Employment Bill which the UK government has committed to introducing as soon as Parliamentary time allows.
Employment law developments:
Government confirms plans to improve flexible work and carers' rights
Caring for a disabled child while working: how HR can help
Pandemic highlights need for gender inclusive parental leave
Carer’s leave
A new right to one week of unpaid leave per year will be introduced for carers.
The right is available to unpaid carers who look after a dependant (including a partner, child or parent) with a disability, long-term illness or suffering from issues relating to old age. The right will be available to employees from day one of their employment and employees can self-certify their entitlement to the leave.
Employees exercising the right to carer’s leave will be protected from detriment, and any dismissal for exercising the right will be automatically unfair.
What to watch out for
Employers may wish to review any existing policies they have which allows time off for dependents or offers unpaid leave and consider how these might interact or overlap with the new right. This will be particularly important if either policy provides for paid time off.
Neonatal leave
Parents of premature or sick babies up to 28 days old, requiring neonatal care, will be entitled to benefit from a new right to neonatal leave and pay. The right applies for a period up to 12 weeks, depending on the duration of the hospital stay, which must be for a minimum period of seven consecutive days.
Entitlement to leave will be a day-one right, but pay will only be available to parents who satisfy the continuity of service and minimum earnings tests applicable to other types of family leave. Employees who exercise their rights to neonatal leave will be entitled to protection from detriment or discrimination arising from taking or seeking to take the leave.
What to watch out for
The interaction of the right to neonatal leave and pay with statutory maternity, paternity and shared parental leave and pay has yet to be confirmed. Forward-thinking employers may want to start considering how they might manage that interaction under their own policies and, in particular, whether they might need to make adjustments to the period of enhanced contractual maternity or shared parental pay, if neonatal pay is to be offered at enhanced rates.
Enhanced redundancy protection for pregnant women and new mothers
Under current rules, before making an employee on maternity leave redundant, an employer must offer her a suitable alternative vacancy, where one is available. Failure to comply with this obligation gives rise to an automatic unfair dismissal.
The UK government has committed to extending the period for which this right is available, so that it applies from the point at which an employee notifies her employer of her pregnancy until six months after the end of the period of maternity leave.
What to watch out for
As the right is a rare example of lawful positive discrimination, employers need to take care to ensure that they apply the right in accordance with its terms and do not go beyond it.
What other change is on the horizon?
Flexible working
The government conducted a consultation at the end of 2021 looking at possible reforms to the statutory flexible working regime. The government is yet to issue a response to the consultation but possible changes include making flexible working a day-one right (i.e. removing the current requirement for 26 weeks' service); amendments to the list of reasons for rejecting a request and allowing employees to make more than one request in any 12-month period.
Menopause and the workplace
Over the last few months, there has been a growing awareness of the negative impact of menopausal symptoms on a woman’s ability to participate in the workplace. High-profile media personalities shone a spotlight on the issue in 2021 by talking about their own personal experience. The issue is now on the UK government’s agenda.
An independent report commissioned by the UK government was published at the end of 2021. The report recognised that employers were at the heart of bringing about a culture change in the way in which society approaches the menopause.
It made a number of recommendations including: holding open conversations to break down taboos around the menopause; training line managers; and ensuring that sick leave and performance management policies took account of the impact of the menopause. Additionally, the Women and Equalities Committee are engaged in an inquiry into whether current legislation goes far enough to support women experiencing the menopause at work.
What to watch out for
At this stage, legislative change is only speculative. However, the issue is gathering momentum and many employers are introducing menopause policies and taking positive action to support menopausal women.
Employers should ensure that they take the issue seriously and reconsider practices which may put menopausal women at a disadvantage. Employees do have a right of recourse by way of a disability, sex or age discrimination claim and it is notable that the number of tribunal claims citing the menopause has been gradually increasing over the last few years.
Louise Mason is senior associate at Linklaters
