Day 1 rights appear as promised, but changes to flexible working may not be as billed.
More "day 1" rights were strongly promoted by the now Labour government in the run up to the general election earlier this year. On this, the Employment Rights Bill 2024/25 ("the Bill") lives up to expectations. Although the same may not be said for changes to the flexible working regime, new requirements for refusing requests may cause employers' headaches.
Day 1 rights
Paternity and Parental leave
In addition to protection from unfair dismissal becoming a day 1 right which we cover in more detail here, employees will also be able to access both paternity leave and parental leave from the first day of employment. Paternity leave will be able to be taken in addition to and following shared parental leave, not something that can be done currently.
Statutory sick pay
The changes to statutory sick pay ("SSP") are twofold and will reportedly benefit over seven million employees. Firstly, the three "waiting days" for SSP are to be removed, so it will be payable from the first day of absence. Secondly, the minimum earnings threshold that employees need to meet to be eligible for SSP (currently £123) is to be removed. Reports prior to the Bill being published suggested that a lower rate of SSP may be set for those who don't reach that threshold. The Bill has addressed this by providing that an employee will receive the lower of the full amount of SSP (currently £116.75) or a prescribed percentage of the employee's normal weekly earnings. The percentage will be set out in secondary legislation following consultation which will close on 4 December. The consultation can be found at Making Work Pay: Strengthening Statutory Sick Pay.
Bereavement leave
The existing right to Parental Bereavement leave, already a day 1 right, is to become a more general entitlement. The majority of the detail of the leave will be set out in regulations, including confirming which relationships trigger the right. Regulations must specify the duration of leave and when it must be taken, subject to a minimum of at least one week and period within in which it must be taken extending to at least 56 days from the date of death. Regulations must also specify that where more than one person dies, the leave entitlement is in respect of each deceased person and may specify how the leave is to be taken. Certain protections for employees who take bereavement leave may also be put in place by regulation.
Flexible working
The changes to flexible working were billed as making it "the default". In fact, the changes that will be brought into effect by the Bill don’t really live up to that billing. The right to flexible working remains a right to request, not a right to have. The process for making the request also stays the same. The significant change is that in addition to only being able to refuse a request on one of the statutorily prescribed grounds, the employer's refusal must also be "reasonable". Additionally, at the point of refusing the request, the Bill requires an employer to notify the employee not just of the refusal as is currently required, but it must also specify which of the permitted grounds it is relying on and why it considers it reasonable to refuse the request on that ground.
Should employees subsequently challenge an employer's decision to refuse a request, we can assume that the notice given by the employer setting out its reasons will come under close scrutiny in a tribunal. That then raises the question of how those notices will be interpreted - will an employer subsequently be allowed to lead evidence on the reasonableness of their decision that is not set out in the notice given to the employee, or will any defence be limited by what was said at the time. The latter would be a narrowing of the current objective test used by tribunals.
As with many of the provisions of the Bill, the UK Government has undertaken to consult on these changes to the flexible working regime, undertaking to "develop the detail of the approach in consultation and partnership with business, trade union and third sector bodies". We will indicate when these consultations open.
