Courtesy of the pandemic, flexible working has been fairly high on most employers’ agendas for some time now. The government has confirmed in its response to its consultation, ‘Making flexible working the default’, that a number of changes will be affecting the flexible working regime. Flexible working will become a day one right, and while the eight business grounds for rejecting a flexible working request will remain as they are, there will be a new obligation on employers to consult with the employee to explore the available options before rejecting a request.

In addition, instead of only being able to make one statutory request for flexible working in a 12-month period, an employee will be able to make two. Employers currently have three months within which to respond to the request; this will be reduced to a two-month period to make the process more streamlined.

The changes are expected to be in law in 2023.

The Retained EU Law (Revocation and Reform) Bill

The Bill provides that all retained EU law contained in domestic secondary legislation (for example, the Working Time Regulations and TUPE) and retained direct EU legislation will be revoked on 31 December 2023 unless a decision has been made to preserve it. It allows for an extension of the revocation date of certain legislation to a later date (which must be no later than the end of 23 June 2026) to enable departments to have additional time, where necessary, to assess whether some retained EU law should be preserved.

Consultation issued on calculating holiday entitlement for part-year and irregular hours workers

The government has just launched a consultation on calculating holiday entitlement for part-year and irregular hours workers as a result of the Supreme Court’s decision last year in Harpur Trust v Brazel. The Court held in Harpur Trust that holiday entitlement under the Working Time Regulations 1998 for permanent part-year workers should not be pro-rated so that it is proportionate to that of a full-time worker. As a result of this part-year workers are entitled to a larger annual paid holiday entitlement than part-time workers who work the same total number of hours across the year.

The government proposes introducing a holiday entitlement reference period of 52 weeks to ensure that holiday entitlement and pay is directly proportionate to time spent working. It proposes to include the weeks in which workers perform no work in the holiday entitlement reference period.

The introduction of carer’s leave

This Bill will introduce a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care and will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for.  Employees will be protected from dismissal or any detriment as a result of having taken time off.

The new entitlement to statutory carer’s leave will rely on the carer’s relationship with the person being cared for, namely a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger, or boarder) or a person who reasonably relies on the employee for care. It will also depend on the person being cared for having a long-term care need.

Neonatal leave and pay

Neonatal care leave will be available to employees from their first day in a new job and will apply to parents of babies who are admitted into hospital up to the age of 28 days, and who have a continuous stay in hospital of 7 full days or more.  Parents will have a right to neonatal care leave of at least one week and up to a maximum of 12 weeks regardless of length of service, and parents with at least 26 weeks’ continuous service will have a right to receive neonatal care pay at a prescribed statutory rate. Parents taking neonatal care leave will have the same employment protections as those associated with other forms of family related leave, including protection from dismissal or detriment as a result of having taken leave.

Sexual harassment in the workplace

The Bill introduces a new duty on employers to take all reasonable steps to prevent sexual harassment in the workplace and reinstates employer liability for third party harassment. If the Bill is passed in its current form, an employee would be able to bring a third-party harassment claim against their employer after a single incident of harassment by e.g. a client or customer. Previously the legal test only imposed liability after the third incident which meant that successful third-party harassment claims were rare.

The Bill contains a 12-month delay period once it has passed, so it won’t come in until 2024 at the earliest.

Consultation on Statutory Code of Practice on Dismissal and Re-engagement

The government launched a consultation on a statutory Code of Practice on Dismissal and Re-engagement on 24 January. The Code sets out detailed steps that employers should take when seeking to make changes to contractual terms, including providing information, engaging in meaningful consultation and exploring alternatives. It makes it clear that employers should not use threats of dismissal as a negotiating tactic.  Employment Tribunals will be required to take the Code into account where relevant in any proceedings and may adjust compensation by up to 25% to reflect unreasonable non-compliance. The consultation on the Code closes on 18 April.