Employment Rights Bill: family-friendly provisions

October 28, 2024

As part of our series of updates exploring the implications of the Employment Rights Bill (the Bill), we consider the changes to the flexible working regime, bereavement leave, paternity leave, parental leave, and pregnancy and statutory family leave protection.

Flexible working

The Bill will make flexible working the default from day one of employment. Employers will only be able to refuse a request on one of the prescribed grounds and, as a new requirement, if it is reasonable for it to do so.

The specified grounds are similar to the existing grounds for refusing a flexible working request:

• burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work;
• planned structural changes; and
• any other grounds specified by the Secretary of State in regulations.

Employers will have to explain to the employee in writing the ground or grounds for refusing the application and explain why they think that refusal is reasonable.

To prepare for this change, carrying out an audit may assist in identifying where flexibility already exists and help you to identify barriers to flexible working in particular roles.

Bereavement leave

The Bill proposes to extend bereavement leave to a wider group of employees by adapting the current Statutory Parental Bereavement Leave regime. At present, this leave is only available to parents who lose a child under 18 or experience a stillbirth after 24 weeks of pregnancy. The Bill will broaden eligibility to cover a wider group of individuals who suffer a loss. The specific relationships that will qualify for the extended bereavement leave will be set out in secondary legislation. Those who have lost a child will remain entitled to two weeks' leave but the entitlement will be one week (in respect of each deceased person) in other cases. Statutory Parental Bereavement Leave attracts pay at the same statutory rate as paternity pay, but it appears from the way the Bill is drafted, and the explanatory notes accompanying it, that the wider bereavement leave entitlement will be unpaid.

Paternity leave

Under existing law, employees must have completed 26 weeks' continuous service before they are eligible for statutory paternity leave. This leave allows fathers, or the mother's partner, to take time off to support their family following the birth or adoption of a child.

The Bill will make eligibility for paternity leave a day one right, meaning there will no longer be a requirement for a qualifying period of employment. Employees will also have the flexibility to take paternity leave after taking shared parental leave, offering more choice in how families manage their time off.

Parental leave

The Bill introduces a significant change to statutory parental leave, which currently requires employees to have completed one year of continuous service. The new legislation makes parental leave a day one right, allowing employees immediate access to up to 18 weeks' unpaid leave per child up to the child's 18th birthday.

Maternity and statutory family leave protection

The Bill takes steps to strengthen protections for pregnant employees and those on or returning from maternity and statutory family leave. Under existing legislation, pregnant employees and those on maternity leave (and other statutory family leave) have a degree of protection from dismissal on the grounds of redundancy. This protection does not amount to a bar on dismissing employees who are pregnant, or on family leave; instead, they have a priority right to a suitable alternative vacancy, where one exists.

The government plans to expand this protection, although this will be done through secondary legislation. The Next Steps paper that accompanied the Bill indicates the government proposes to make it unlawful to dismiss pregnant employees or those returning from maternity or other statutory family leave within six months of their return, except in specific limited circumstances.

Summary

The table below provides a comparison of the current position and the position under the Bill.

Family-friendly provision	Current position	Position under the Bill
Flexible working	Employees have the right to request flexible working from day one of employment. Employers can refuse requests on business grounds and must respond within two months.	Flexible working as the default by requiring an employer's refusal of a request for one of the statutory reasons to be reasonable.
Bereavement leave	Statutory parental bereavement leave entitles eligible parents (those who lose a child under 18 or suffer a stillbirth after 24 weeks) to two weeks' paid leave. This is a day one right, although employees must have 26 weeks' service to be eligible for statutory parental bereavement pay.	One week's unpaid bereavement leave will be available to all employees. The government will set out the relationships covered in secondary legislation. Parents will still be eligible for two weeks' paid leave if a child under 18 dies.
Paternity leave	Employees must have 26 weeks' continuous service to qualify for paternity leave and cannot take paternity leave after a period of shared parental leave.	Employees will be eligible for statutory paternity leave from day one of employment and will be able to take paternity leave after taking shared parental leave.
Parental leave	Statutory parental leave is available after one year's service, allowing up to 18 weeks' unpaid leave for each child up to their 18th birthday.	Employees will be eligible for statutory parental leave from day one of employment.
Maternity and statutory family leave protection	Pregnant workers and those on maternity leave (or other statutory family leave) have priority rights to a suitable alternative vacancy in a redundancy situation. This priority right also applies after return from statutory family leave.	Subject to secondary legislation, it will be unlawful to dismiss employees during pregnancy and within six months of their return from statutory family leave.

Timing and secondary legislation

The government has indicated that most of the reforms will not take effect before 2026. It must bring forward secondary legislation to implement its plans in relation to dismissal protection for pregnant employees and those on or returning from statutory family leave.

In due course, it will be important to ensure that you train managers, so they are aware of these new provisions. The move to make flexible working the default will require advance planning - as recommended above, an audit of existing flexibility and barriers is a good place to start.

You can read our overview of all the key measures in the Bill here.