Key changes to flexible working and leave in Employment Rights Bill

Following the government's recent announcements regarding the new Employment Rights Bill, this is the second instalment in our blog series exploring the expected changes.

In our first blog, we looked at proposed reforms around dismissals. Future posts in the series will explore changes to sexual harassment and discrimination law, zero-hours and casual work, and provisions relating to trade union law.

Here, we turn our attention to how the Bill may impact flexible working arrangements and various types of leave.

Flexible working

The right to request flexible working arrangements from an employer was recently made a day-one right for workers, and that right is now being expanded to narrow the grounds on which employers can refuse requests.

Where an employer wishes to refuse a flexible working request, they must rely on one of the statutory reasons for refusal and demonstrate that doing so was reasonable.

This obviously opens considerable scope for employees to challenge the refusal of any flexible working request and muddies the waters somewhat, because the legislation does not define how ‘reasonableness’ will be assessed. It is likely that many cases that would otherwise have avoided getting to the Tribunal stage in this realm will instead now require a judge’s ruling on reasonableness.

Statutory Sick Pay (SSP)

Statutory Sick Pay is currently only payable from the 4^th day of absence, but under the new proposed rules the entitlement to receive SSP will begin from the first day of absence.

The weekly rate for SSP will not be increased across the board and there are currently no plans to increase it to align with National Minimum Wage, but instead it will now be the lower of either the prescribed weekly rate (this has not yet been decided), or the prescribed percentage of the employee’s normal weekly earnings.

Currently the rate is set at 80% of weekly earnings, so this is likely to increase. Finally, the requirement for employees to meet a lower earnings limit to qualify for SSP will be removed.

Bereavement leave

Under current provisions, the only statutory right to leave due to bereavement is contained in the parental bereavement leave provisions, which are for two weeks following the death of a child under 18.

In the new Bill bereavement leave will become a day-one right and be for a period of one week. It has not yet been determined exactly what relationships to the deceased would qualify for this additional right. It’s also unclear whether this will be extended to individuals affected by pregnancy loss, including for miscarriage, IVF failure or medically advised terminations.

The new system would therefore be a 2-tiered one where the minimum statutory period of leave entitlement is one week for each person who passed away, but with two weeks remaining in place for the death of a child.

It is envisaged that this new right to leave will be for unpaid leave only, and there will not be an associated right to be paid for these time periods.

Paternity and parental leave

Both paternity leave and general parental leave will become day-one rights for eligible employees, removing the current requirement for a qualifying period of service before entitlement begins.

Working time records

As part of the wider reforms, the government intends to introduce a requirement for employers to maintain specific records demonstrating compliance with annual leave entitlements and related pay. This would include accurately recording the various types of leave discussed in this blog to ensure proper oversight and accountability

Need some advice on the new Employment Rights Bill?

We understand that for both employers and employees this is an uncertain time, and you may have questions, or need clarification about how the changes apply in your particular circumstance. We’re on hand to answer any questions from existing or new clients seeking advice on any of these matters.

If you’re experiencing disagreements or claims arising as a result of these changes, we’re also able to assist with settlement negotiations or litigation action. Please do get in touch to discuss your situation and we will be happy to help.