Briefing | How the Employment Rights Bill impacts flexible working and family rights

Ensuring flexible working reforms deliver benefits for employees

The CIPD has long advocated for flexible working practices and campaigned for the day-one right to request flexible working through our #FlexFrom1st campaign. Flexible working can help support people into employment and employees are increasingly looking for workplace flexibility for a range of reasons including to juggle work and caring responsibilities, for health reasons or to pursue other interests. 

Offering flexible working can help organisations to attract, engage and retain employees. We are therefore pleased to see a focus on flexible working in the ERB, building on the day-one right to request flexible working. 

We have played an active role in co-chairing the Flexible Working Taskforce, an informed and wide-reaching group of business lobby organisations, professional bodies, unions and key charities, alongside the Department for Business and Trade (DBT). We would like to see this taskforce continue and its remit broadened to boost the provision and uptake of flexible working and to review and feedback on government proposals.   

Flexible working is more challenging for some sectors and roles, particularly for those working in front-line positions. Therefore, we are calling on the government to create a flexible working challenge fund for businesses with non-office-based and front-line workers to trial and promote different forms of flexible working and their benefits for business and employees. This will be particularly helpful for SMEs who may lack the resource to explore options fully.  

Some practical steps that can be taken by employers to prepare for change in this area include:  

• updating policies and processes on responding to flexible working requests
• revising recruitment processes to reflect earlier conversations about flexible opportunities 
• reviewing what forms of flexible working may suit your organisation 
• providing training and support for line managers in managing flexible workers.  

Preparing for the ‘right to switch off’ 

The government will introduce a ‘right to switch off’, through a code of practice, in the next steps beyond the ERB. No timeline has been specified for this, but the CIPD has been feeding into a Task and Finish group with the DBT, working through the practical implications and ensuring people professionals’ perspectives are heard. 

A code of practice should allow employers to develop approaches that work for both them and their staff. There will be different demands for this type of flexibility and the code must consider the needs of different sized organisations and sectors and of course the different nature of people’s jobs.  

Developed in the right way, in consultation with employers, such a code of practice can promote what is already adopted in many organisations as good practice and support work-life balance and wellbeing. 

In preparation, employers will need to have clear policies that align with any new code, clarifying the circumstances where managers can and cannot contact staff outside their usual working hours. 

Focus on family rights and protections 

There are also new provisions within the ERB making it unlawful to dismiss a woman while pregnant, on maternity leave and within six months of returning to work (with some exceptions). 

Existing powers in relation to adoption leave, shared parental leave, neonatal care leave and bereaved partners paternity leave will be expanded to enable regulation of dismissal in the period after a person returns to work following one of these forms of leave. 

When the necessary details become available; employers will need to: 

• update maternity and redundancy policies
• brief managers on the relevant changes
• factor the potential change into decision-making, especially those who have plans for future change programmes, such as restructuring. 

There are also provisions within the ERB to make both parental leave and paternity leave a day-one right.   

Again, when further information becomes available, employers will need to: 

• update parental and paternity policies and any associated guidance and processes
• brief managers, and it may be helpful to also notify employees of these changes and confirm when they are taking effect. 

We welcome this focus on family rights and maternity protections in the bill and would like to see in the future a review of the parental leave system that provides greater fairness, flexibility and choice to working parents and supports workforce participation and retention. 

Changing rules on bereavement leave 

Finally, the ERB includes a new bereavement leave provision, to ensure employees experiencing a bereavement can take leave at one of the most difficult times in their lives. We’ve long called for this alongside organisations like Cruse Bereavement Care and Lucy Herd, who campaigned for the incredibly important Jack’s Law that introduced reforms to parental bereavement leave and pay.  

A new day-one right will be introduced allowing employees to take at least one week of bereavement leave. The details of the relationship that the employee must have had are still to be confirmed. 

While many employers offer some form of compassionate leave, the government plans to make this a statutory entitlement. The CIPD would like the government to go further and make this a paid statutory entitlement. Bereavement can have a big impact on a person and their work, and it’s vital that employees receive time off and support at what is already a very difficult time. 

In preparation, employers can: 

• consider developing or updating their bereavement policy – a policy can help clarify anything offered in addition to current legal requirements and outline what employees can expect in terms of support
• brief managers so they are aware of any current and future entitlements employees will have
• notify employees of these changes and confirm when they are taking effect. 

We will continue to work with the government to ensure the voice of the people profession and our members’ views are heard and to help shape these provisions going forward. This has begun through feeding into several government roundtables and Task and Finish groups in these areas.