A legal expert has said employers need to be alert to the potential for fresh tribunal cases as a result of legislative changes coming into force on 6 April.
Changes coming in on Saturday are designed to protect and support working people with family and caring responsibilities. They include the new carer’s leave act 2023, changes to the right to request flexible working, and enhanced protection against redundancy for people on maternity, adoption or shared parental leave.
However, Florence Smart, solicitor at Winckworth Sherwood, warned that a judgment from the employment appeals tribunal (EAT) in March 2024 has highlighted the potentially protected status of employees requesting statutory leave. Such protection will now apply to carers and those asking for flexible working and family leave.
Citing the case of Hilton Foods Solutions Ltd v Andrew Wright, Smart said Wright was dismissed, apparently on the ground of redundancy. He claimed automatic unfair dismissal on the basis that the real reason for his dismissal was that he wanted to take parental leave.
Smart said: “An employee is protected against being dismissed both because she or he took parental leave and because she or 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 Wright had sufficiently sought to take parental leave and whether that was actually the basis for his dismissal, rather than redundancy.”
She said that Wright’s employer applied to strike out the claim on the basis that as a matter of law the former employee could not have sought to take parental leave because he had not submitted a formal request.
The employment tribunal (ET) rejected this argument, and the EAT upheld its decision because submitting a formal request is not the only way an employee can request leave.
Wright had “informally” made a request several times, 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.
Smart said the EAT decision had taken into account parliament’s intent when it extended protection for employees facing redundancy to include people who have requested, or are currently on, parental leave.
“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.”
Smart said employers could take proactive measures around potential claims such as implementing comprehensive policies and procedures which reflect the changes and set out the expectations for both employee and employer. She also highlighted the benefits of providing relevant training alongside such policy roll-outs to help 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,” she said.
Key changes from 6 April 2024
Carer’s leave regulations 2024
- 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.
- 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 (amendment) regulations
- This amends the employment rights act 1996 meaning employees can make a flexible working request from day one of employment. It replaces 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 for 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.
