Employment Rights Bill unpacked: just getting started for family rights?

One of Labour’s election promises was to make work more family friendly. They promised to introduce a baseline set of family-friendly rights to improve employee wellbeing, as well as productivity at work. The Bill partially addresses this by introducing changes to the flexible working regime (which we discuss here). There is also a raft of other measures aimed at improving family friendly rights. These are far from ground-breaking but, perhaps more significantly, the government have also promised a review of the parental leave system entirely. 
We look at what changes are introduced in the Bill and what a wider review could mean for employers.

What’s new?

The Bill introduces some fairly minor tweaks to parental leave and paternity leave. These are uncontroversial and likely to have a limited impact. 

• Parental Leave

The Bill tinkers with the length of service requirement meaning employees will be able to use their (unpaid) parental leave entitlement as soon as they start employment instead of having to wait until they have worked for their employer for a year.  

Most employers will not see a big impact from this change as uptake of parental leave remains quite low and short in duration, partly because it is an unpaid entitlement. Employees who are currently ineligible due to lack of service tend to request annual leave or unpaid leave to deal with family emergencies. With many employers also becoming more creative in their benefit options and offering sabbatical opportunities, employees are increasingly willing to consider time off (particularly on an unpaid basis) outside of any statutory rights.

• Paternity Leave 

Similarly, the Bill removes the requirement to have 26 weeks’ service (accrued by 15 weeks before the expected week of childbirth), giving employees a day 1 right to paternity leave. Although this does widen the number of employees who will be eligible for paternity leave, the length of paternity leave remains very low at just two weeks (at least for now – see more on this below). The impact of widening who is eligible will be minimal. 

Another small change is to fix a quirk with the interplay between paternity leave and shared parental leave. Currently, an employee will lose their entitlement to paternity leave and pay if they take a period of shared parental leave and pay first. The Bill rectifies this by allowing employees to take paternity leave and pay even after taking shared parental leave and pay. 

We don’t currently know when these limited changes will come into force; the date will be set in further regulations. We don’t expect any consultation to take place in advance of these changes coming into effect. 

Some more substantive rights in the Bill include:

• Bereavement Leave

A new right for employees to at least one week of unpaid bereavement leave. We await further regulations to set out the relationship to the deceased that will qualify for this leave and how the leave can be taken. It is likely that the relationships will be the same as for time off for dependents and carer’s leave (spouse, civil partner, parent, child or someone in the same household that isn’t a tenant/lodger/employee). The Bill and accompanying documents do not mention the possibility of this right being paid which will likely affect uptake. Many employees could, as they do now, instead opt for sick leave receiving either SSP or company sick pay.

This new leave does not change the current entitlement to two weeks paid time off for parents who sadly lose a child (statutory parental bereavement leave). Those taking parental bereavement leave have the right not to suffer detriment or be dismissed for reasons relating to the parental bereavement leave (which would count as an unfair dismissal), and these protections will also be extended to employees taking the new, broader bereavement leave. 

Many employers already have compassionate leave policies in place which may grant paid or unpaid leave for employees going through this difficult time. However, there is often a disconnect between the amount of time given and the time employees actually need, with some employees either having to return unfit to work or to use sick leave. Whilst a week of absence is a short amount of time, it creates a clear minimum standard for employers and puts the right to leave in these circumstances on a statutory footing. 

The government have committed to consulting on the regulations which will shape how the right will work in practice. The consultation is expected next year. Any entitlement will likely not come into force before April 2026. 

• Banning dismissals for employees who are pregnant or on/returning from family leave 

Earlier this year, the law was changed to give priority for redeployment opportunities in redundancy situations to pregnant employees and those returning from family leave. Full details of this change can be found here. This priority status already applied to employees who were on maternity leave, shared parental leave or adoption leave. The priority status means that employees have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant.

The government want to go further and strengthen this protection. The Employment Rights Bill will give the government powers to introduce regulations to cover other dismissals (which are not redundancies) taking place during pregnancy, maternity and other family leave or following a return to work. 

In terms of banning dismissals entirely, we don’t currently have a clear idea of precisely what the government is intending to introduce. The explanatory notes to the Bill explain that there will be powers to make regulations to ban dismissals for anyone who is pregnant, on maternity leave or during a six month return to work period, except in specific circumstances. This may also extend to other forms of family leave, such as adoption leave, shared parental leave, neonatal leave and bereaved partner’s paternity leave. We await further regulation to understand how it is proposed such a ban would work. 

And what didn’t make it into the Bill?

Any wider changes to the overly complicated (and under-utilised) shared parental leave system are conspicuously absent from the Bill. It is notable that whilst the Bill has ensured a day 1 right to paternity leave and unpaid parental leave, the service requirement of 26 weeks remains in place for shared parental leave. One would be forgiven for hoping that its absence in the Bill (bar the minor tweak set out above) means it will be top of the agenda for change under the wider parental leave system review (which we discuss further below). 

In addition, press leaks before the Bill was published included an expectation that there would be a change to how eligibility is calculated for statutory maternity pay (SMP). The change was expected to modify the current 26-week service requirement (accrued by 15 weeks before the expected week of childbirth) with the result that, as long as an employee commenced employment before they were roughly six months pregnant, they would be entitled to receive SMP. This change was not included in the Bill but it is possible that it may have a revival as part of the wider review. 

What can we expect in the future?

Whilst the family rights changes in the Employment Rights Bill may have disappointed those with an appetite or expectation for wider reform, it is clear that we can expect more. In the Government’s Next Steps to Make Work Pay document, which was released alongside the Bill, it is acknowledged that “some reforms will take longer to undertake and implement”. 

Full review of the family leave system

Coming in at number one on that list is a “full” review of the parental leave system with a recognition that the current system “does not support working parents”. This seems to be a reference to the full family leave system – rather than the right to unpaid parental leave which we discuss above. Whilst we will need to await the details, the Government have also published a fact sheet confirming the review will focus on ensuring that parental leave “offers the best possible support to working families”. 

Any parental leave reform would be widely welcomed given the only recent attempt at proper reform consisted of introducing shared parental leave almost a decade ago. Shared parental leave is often criticised for its complexity as well as the fact that it requires one parent to curtail their leave in order for the other parent to benefit. Consistently low uptake of shared parental leave also suggests that it hasn’t worked despite a changing society that now challenges the perception that parenting is the primary role for a mother, or one parent, only. 

Employers frustrated by the limitations, complications and stereotypes of the current family leave system, and in need of better ways to attract and retain talent who also want a family, have already begun to answer the call for change. Some employers offer enhanced paternity leave and pay, in an attempt to recognise that partners need and want to be with their new baby for those early months just as much as the mother does and that the burden of parenting no longer falls (nor does society expect it to fall) on one parent. 

Increasingly employers are going even further, looking to distance themselves from the rigid statutory rights. This includes offering family leave and pay to all new parents (regardless of gender or how they became a parent). For example, Lewis Silkin recently announced a New Parent policy which gives all new parents the ability to take 52 weeks leave and 26 weeks of full pay without the constraints of the shared parental leave system. The leave and pay can be taken in an unlimited number of discontinuous blocks within the first 12 months of the birth or adoption of a child and does not require the other parent to curtail (or limit) their leave. 

With real recognition that the parental leave system is unfit for modern parenting, there is some hope that the government will make the most of the time it has given itself to properly review and consult on the parental leave system and make the bolder move to a less gendered parental leave system which will go some way to achieving and recognising equal parenting. 

Lewis Silkin will be submitting a response to the parental leave system review once launched. 

Carer’s leave

Also on the list of long-term reform is the implementation of paid carer’s leave. A right to one week’s unpaid carer’s leave in any rolling 12 month period was introduced in April 2024.It allows  employees to provide or arrange care for a dependant with a long term care need (for more details on the right, please see here). Whilst this new right was welcomed at the time it fell short of being truly impactful on those working people who have caring responsibilities because (similar to parental leave) it is unpaid and relatively short in duration.  

Again, some employers already enhance this right, allowing additional time off and pay for carers. The Government’s Next Step document says it will be examining the benefits of introducing paid carer’s leave, balanced against the impact this will have on employers. It is not known when this review will take place.

Kinship Carers

It has also been reported that as part of any wider parental leave reforms, the Government may consider covering kinship carers (those who care for children who cannot live with their parents). 

The possibility of having statutory leave for kinship carers had been explored by the previous Conservative government. Whilst there has not been any mention of kinship care specifically in the Bill, Explanatory Notes, or Next Steps documents, it is possible that it will be considered as part of the broader consultation. 

Kinship care is often required at short notice and can cause significant financial strain. Introducing statutory rights for kinship carers would really help support working families that fall outside the traditional understanding of parents and the support offered to them. Improvements in leave and pay provision for kinship carers will also be a significant step in improving social mobility for children growing up with kinship carers.