Flexible Working and Family-Friendly Rights
Introduction
Family-friendly rights are improved under the Bill since they will not only introduce a right to unpaid parental leave and paternity leave from day one in employment but also shift the burden to employers to justify why they have refused a request for flexible working. A new right to one week of bereavement leave for those in a qualifying relationship is also introduced. This is in addition to the right to two week’s paid statutory parental bereavement leave.
What's included?
The right to unpaid parental leave gives employees the right from day one in employment to take up to 18 weeks of unpaid leave to care for a child under the age of 18. The right applies to each child, so two children would mean two lots of 18 weeks of leave albeit unpaid.
The right to paternity leave will also apply to employees from day one in employment and aligns with the rights of women and adoptive parents who are entitled to maternity and adoption leave from day one in employment. The restriction from taking paternity leave following a period of shared parental leave is also removed.
Employers may still refuse a request for flexible working on the following current grounds:
a. the burden of additional costs.
b. detrimental effect on the ability to meet customer demand.
c. inability to re-organise work among existing staff.
d. inability to recruit additional staff.
e. detrimental impact on quality.
f. detrimental impact on performance.
g. insufficiency of work during the periods the employee proposes to work.
h. planned structural changes.
However, employers will need to specify which of the above grounds they rely on and explain why the decision to refuse on the specified ground is reasonable. Regulations will also set out the steps an employer must take when consulting employees before rejecting a request. An employee whose request is refused will also be able to bring a claim in the tribunal if the employer failed to consult in accordance with the regulations.
The right to bereavement leave has been amended and will (i) introduce a new right of one week of bereavement leave for those in a qualifying relationship and (ii) be extended to apply to mothers and partners who experience pregnancy loss within the first 24 weeks of the pregnancy as opposed to only after 24 weeks has elapsed.
Regulations will set out the conditions employees will be required to meet to qualify for the new bereavement right, which will ultimately depend on the nature of the relationship to the loved one. Employees will also be protected from being subject to a detriment and dismissal for taking the leave.
What's not included?
The right to parental leave (which is separate and distinct from the right to shared parental leave) remains unpaid. The extended right to one week of bereavement leave for the loss of a loved one including pregnancy loss within the first 24 weeks is also unpaid. Neither is there any proposal to increase paternity leave from the statutory minimum of two weeks' paid leave.
The commitment to make flexible working the “default in workplaces” falls short of providing workers with a right to flexible working from day one in employment. The right to bring a claim for a failure to consult where a flexible working request is refused only applies where the employer has not acted “in accordance with the regulations”. There is also no increase in the amount of compensation that can be claimed. The most an employee can claim for a breach of the right is £5,752.
The requirement on employers to justify the reason for refusing a request should hopefully lead to more flexible working requests being granted. Alternatively, employers who unreasonably refuse a request will face greater scrutiny by employment tribunals.
Comment
While improvements to family-friendly rights, such as the new right to one week of unpaid bereavement leave including for pregnancy loss, are welcome, these changes are really just tinkering at the edges. In ‘Next Steps,’ the government stated its commitment to reviewing the parental leave system and between 3 July 2025 and 26 August launched a call for evidence as part of that review.
The day one right to paternity and parental leave is due to come into force on 1 April 2026 while bereavement leave and improvements to flexible working will not be introduced until 2027.
