Insights

From changes to flexible working and paternity leave to holiday pay reform for individuals with irregular work hours, read on to find out what the key Employment Law updates are for April 2024.

Changes to flexible working

Flexible working, and flexible working requests, can relate to working patterns or hours, flexi-time, and working locations, such as working from home. The statutory right to make a request for flexible working was previously limited to workers who had six months or more continuous service. They were also limited to making one such request per rolling 12-month period. In order to make such a request, workers were also required to explain how their request would impact on the employer, and how that effect may be dealt with. Employers had three months to consider and make a decision on such flexible working requests.

However, from 6 April 2024, the Employment Relations (Flexible Working) Act 2023 (the Act) will amend key sections of the Employment Rights Act 1996 relating to flexible working, seeking to make flexible working arrangements more accessible. From 6 April onwards, workers will have a right to request flexible working arrangements from day one of their employment. They will also be permitted to make two requests in any 12-month period, rather than just one.

Furthermore, workers will no longer have to explain the effect their request will have on the employer or how the effect may be dealt with, and employers will now only have two months to make a decision on a request rather than three. If the employer intends to reject the request, it will also now be compulsory to consult with the worker before doing so.

It should be noted, however, that the statutory reasons why an employer can lawfully refuse a request remain unchanged.

Employers may wish to review their flexible working policies and practices in advance of this chance coming into force.

Changes to paternity leave and new carer’s leave

Paternity leave

From this spring, fathers and partners will have more flexibility in respect of how they take their paternity leave. Previously, paternity leave could be taken only in a single block of leave of either one or two weeks, to be taken within 8 weeks of the birth or placement for adoption of a child. Fathers and partners had to give 15 weeks’ notice of their intention to take such leave.

Following the coming into force of the Paternity Leave (Amendment) Regulations 2024, in respect of expected weeks’ of childbirth and placements for adoption on or after 6 April 2024, there will be more flexibility. Paternity leave will be able to be split, so two separate one-week periods can be taken instead of just a single period of leave. Such leave can now be taken in the 52 weeks after the birth or placement for adoption of the child, and only 28 days’ notice is required.

Carer’s leave

Also coming into force on the 6 April 2024 is the Carer’s Leave Act 2023, which introduces a new concept of ‘carer’s leave’ into the Employment Rights Act 1996. Previously, employees with caring responsibilities required to use holidays, or to try and use other statutory entitlements such as dependant’s leave (for use in unexpected or sudden events), or parental leave (to be used to care for a child).

However, to recognise that carers may have responsibilities for those who are not children and that such responsibilities may not be adequately covered by the time off for dependants entitlement, the new concept of carer’s leave has been introduced. Carer’s leave will be a day one right for employees who have a dependant with a long-term care need. The right will be for a week’s leave from work in any 12-month period in order to provide or arrange care.

A ‘dependant’ under the act is someone who is the spouse, child or parent of the employee and either lives in the same household (other than a tenant or lodger) or reasonably relies on the employee to provide or arrange care. A ‘long-term care need’ is defined as having an illness or injury which is likely to require care for more than three months or they have a disability under the Equality Act 2010, or they require care for a reason connected with old age. Employees will not be required to supply evidence to support a request to take leave and employers cannot insist upon it. 

An employer will be entitled to postpone a request for carer’s leave if they reasonably consider approval would unduly disrupt the operation of the business. However, in order to do so they must provide a written counter notice within seven days of the request with an explanation and revised dates for leave. The employee must also be allowed to take the carer’s leave within a month of their original request.

Extension of protection from redundancy for those on or returning from family leave

From 6 April 2024, the existing protections from redundancy for those on or returning from family leave are being extended by the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (the Act).

Previously the law stated that employees on maternity leave, shared parental leave, and adoption leave had protections from redundancy under the Employment Rights Act 1996. These protections meant that employees on such leave had the right to be offered a suitable alternative vacancy, if available, before being made redundant (ahead of others who were also at risk of redundancy).

The Act amends the Employment Rights Act 1996 by extending the protection from redundancy to the period of pregnancy, and for a period after the taking of relevant leave (i.e. maternity, adoption or shared parental leave). For pregnant employees, the protection would start when they advise their employer about their pregnancy. In terms of the length of the protection, the Act increases the protected period to 18 months after the birth of the child, 18 months after the child’s placement for adoption, or for those taking six or more consecutive weeks of shared parental leave and who have not taken maternity or adoption leave, 18 months after the child’s birth or placement for adoption.

During this protected period, employees covered by the Act must be offered alternative employment (if available) in a redundancy situation, ahead of others who do not qualify for the protections. Failure to comply with this provision could result constitute an unfair dismissal.

Holiday pay reform for individuals with irregular work hours and part-year workers

Following on from changes to the law on holiday pay in January this year, further changes are effective from 1 April. The Employment Rights (Amendment, Revocation and Transitional Provision) Regulation 2023 provides alternative options for the calculation of holidays for ‘irregular-hours’ and ‘part-year’ workers.

Irregular hours workers are defined by the government as: ‘A worker whose number of paid hours that they will work in each pay period during the term of their contract in that year is, under the terms of their contract, wholly or mostly variable’.

Part-year workers are defined as: ‘A worker who under the terms of their contract, is required to work only part of that year and there are periods within that year (during the term of the contract) of at least a week which they are not required to work and for which they are not paid’.

For such workers, employers may choose to allow accrual of their holiday entitlement at the end of each pay period (i.e. the intervals at which they are paid) calculated as a percentage of hours worked and be paid holiday pay on a rolled-up basis i.e. by way of a supplement to basic pay. This new regime will be available in respect of holiday years beginning on or after 1 April 2024. For employers whose holiday year follows the calendar year, this means that the new provisions will not apply until from 1 January 2025.

If you have any questions about these Employment Law updates, please contact Senior Associate Annika Neukirch or Partner and Head of Employment David Chalmers in our Employment team who will be happy to assist.

Further reading: Employment Law Fact Card 2024