All change in April – carer’s leave, flexible working and redundancy protections

With these changes imminent, it is timely that the Employment Appeals Tribunal (EAT) has, in a recent judgment, provided a reminder of the potentially protected status of employees seeking to take statutory leave – protections which will now apply to carers and those seeking flexible working and family leave.

In the case of Hilton Foods Solutions Ltd v Andrew Wright, Mr Wright was dismissed, purportedly on the ground of redundancy. He claimed automatic unfair dismissal on the basis that the real reason for his dismissal was that he sought to take parental leave. An employee is protected against being dismissed both because s/he took parental leave and because s/he “sought” to take parental leave, even where that individual does not have two-years’ service which is usually required to qualify to bring an unfair dismissal claim.

The key question here was whether Mr Wright had sufficiently sought to take parental leave (and whether that was actually the basis for his dismissal, rather than redundancy). Mr Wright’s employer applied for strike out on the basis that as a matter of law Mr Wright could not have sought to take parental leave because he had not formally submitted a request. The Employment Tribunal (ET) rejected the application, and the EAT upheld its decision to reject that application, since it found that whilst giving notice to take parental leave will demonstrate that an employee has sought to take parental leave, it is not the only way that the fact that the employee has sought to take parental leave can be evidenced.

In this case the matter had been raised several times by Mr Wright “informally”, which satisfied both the ET and EAT that he had, as required in law, sought to take parental leave, even though he had not yet made a formal request. The case has been remitted to the ET to consider the claim of automatic unfair dismissal.

In coming to its decision, the EAT particularly considered Parliament’s intentions in passing the legislation referred to above to extend the protections in redundancy situations for employees seeking to take (or taking) parental leave. This led the EAT to interpret the (then current) legislation widely to give effect to this intention. It is likely that similar legislation, including the new Carer’s Leave legislation, will also be read in this way. So, a word of caution to employers contemplating terminations where impacted employees have taken or asked about taking any statutory leave.

More generally, as the statutory landscape shifts further in early 2024 in favour of accommodating those with family and caring responsibilities, employers should be alert to employee entitlements and increased protections.

Proactive measures, such as implementing comprehensive policies and procedures which reflect the changes and set out the expectations (both of employee and employer) and providing relevant training alongside such policy roll-outs, will be important to navigate the changes and avoid disputes. HR departments are likely to experience a rise in queries from employees seeking clarity on their new entitlements, so preparation is key.

To assist, we have summarised the key changes happening from 6 April 2024 below:

Carer’s Leave

• The Carer’s Leave Regulations 2024 will introduce a new statutory right to unpaid carer’s leave for employees for a period of up to one week in a 12-month rolling period.
• This is a day one right which applies to employees caring for a dependant (spouse, civil partner, child, parent, a person who lives in the same household, or someone who reasonably relies on the employee for care) with a long-term care need.
• Like other statutory leave entitlements, employers cannot penalise an employee for taking or seeking to take carer’s leave.
• Employees are not required to evidence their entitlement to the leave.

Flexible Working

• The Flexible Working (Amendment) Regulations (SI 2023/1328) amend the Employment Rights Act 1996 so that employees can make a flexible working request from day one of employment (replacing the current 26 weeks’ minimum service requirement). They do not need to set out the effect on the business or suggest ways of managing the effect.
• Employees can now make two requests, rather than one, in a twelve-month period.
• Employers must now respond within two months, not three and consult an employee before refusing a statutory request for flexible working.
• Employers cannot penalise an employee for taking or intending to make a flexible working request.

Redundancy Protections

Maternity, adoption and shared parental leave

• The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 extend redundancy protection to apply during pregnancy and for a period of 18 months after birth or placement of a child for those taking maternity, adoption or shared parental leave.