Employment law update Sept 2023 – three family friendly law reforms
Employment law update Sept 2023 – three family friendly law reforms
Wake Smith’s employment team looks at three family friendly law reforms affecting:
1 Pregnant women and employees returning from family leave in a redundancy situation
2 Neonatal care leave and pay
3 Surrogacy
Greater protection for pregnant women and employees returning from family leave in a redundancy situation.
In January 2019, the government published a consultation which had sought to obtain views on proposals to extend redundancy protection.
As a result of the consultation, in May 2023, the government was given the power to make regulations that will protect employees on maternity or other types of family leave in redundancy situations – this is under the Protection from Redundancy (Pregnancy and Family Leave) Act 2023.
The act came into force on 24 July 2023, however, requires secondary legislation before it can be fully implemented.
We need to await the publication of the regulations to understand the details of the extended rights.
At present, the additional protection for those on maternity leave and other types of family leave ends when the employee returns to work.
However, the changes being introduced will extend current redundancy protections for those returning from maternity leave and other types of family leave by up to 18 months.
The changes will be a welcomed change for new/expectant parents who will be afforded extra protections, which may avoid them needing to compete with colleagues in a redundancy situation.
However, employers will need to tread carefully when considering any proposed redundancy procedures to take account of additional regulations which are likely to be implemented in the very near future.
Employers will need to take into account when looking at suitable alternative employment those on maternity, shared parental and/or adoption leave (as per the current law), but may need to consider anyone who is pregnant or whom has recently returned from maternity and shared parental leave as well.
Neonatal care leave and pay
The Neonatal Care (Leave and Pay) Act 2023 (“the Act”) received Royal Assent on 24 May 2023.
Its aim is to help parents who find themselves in the very difficult situation where their baby needs neonatal care.
The Act allows such parents to have time with their babies, while they are receiving medical treatment, without the time being identified as parental leave.
Neonatal leave is expected to come into force in April 2025. It will be a “day one” right, meaning that parents will be entitled to the time off from the first day of employment. After 26 weeks of service, employees will also be entitled to neonatal care pay.
Parents will be entitled to up to 12 weeks of paid neonatal leave, the specific length will be determined by how long the baby requires neonatal care.
We are awaiting the logistics of how neonatal leave will work in practice, including if the employee would need to serve notice or provide any evidence. Whilst the details have not been finalised, we recommend that employers consider how they can best support employees going through, what is undoubtedly, an emotional and difficult time ahead of the implementation of neonatal leave.
Neonatal leave will reflect of statutory leave entitlements, meaning that employees will have the same protections as those associated with other types of family related leave. This is inclusive of the right to be protected against dismissal and/or detriment as a result of taking neonatal leave.
Surrogacy
Surrogacy laws, largely, date back to 1980s and do not provide the same level of protection, for the intended family, as other family friendly laws.
In March 2023, the Law Commission and the Scottish Law Commission published a joint report providing recommendations to surrogacy law.
The report was produced following a consultation on the possible changes to surrogacy law such as if intended parents should qualify for maternity allowance or if they should be entitled to time off work before the baby is born.
The recommendations within the report propose the following reforms, which are centred around ensuring that a surrogate is treated in the same way as a pregnant woman, or the intended parents are treated the same way as any other employee with a newborn baby.
It is now up to the government to decide on any next steps including what legislation, if any, to introduce. An interim government response is required by September 2023, and a full response by March 2024.
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Published 19/09/23
