The Government has confirmed that the new right to take additional leave in circumstances where a child has received neonatal care will take effect from 6 April 2025.
This right was introduced under the Neonatal Care (Leave and Pay) Act 2023, and the Government has now published draft regulations for implementing the right to take leave and to provide for statutory neonatal care pay.
The right allows for up to 12 weeks of additional leave to be taken, paid at a statutory weekly rate of pay, in respect of a child requiring neonatal care within 28 days of birth.
Who is entitled to take the leave?
The new statutory right to take leave will apply only in respect of children born on or after 6 April 2025. It is available to a child’s parent, partner of the mother, or adoptive parent or partner, provided the employee has or expects to have responsibility for the child’s upbringing and is taking the leave to care for the child.
The right to take leave is a ‘day one’ right, meaning that employees have no minimum period of service to qualify for taking the leave (but will require a minimum service period to receive pay for the leave – see below).
To be eligible, the neonatal care must start within 28 days of the child’s birth and continue without interruption for a period of at least seven days. ‘Neonatal care’ will generally mean medical care received in a hospital but can also mean medical care received elsewhere, and includes palliative care.
Eligibility to take a period of neonatal care leave is preserved in the event the baby dies.
What is the right?
An employee is entitled to take one week of neonatal care leave in respect of each ‘qualifying period’ that a child has spent in neonatal care. A ‘qualifying period’ is, broadly, any period of a week during which the child receives neonatal care without interruption, but the entitlement only arises after the first seven days of neonatal care and lasts for a period of seven days after the baby is discharged.
The maximum length of neonatal care leave is 12 weeks, even in the case of multiple births.
The draft Regulations provide for ‘tier 1’ and ‘tier 2’ periods of leave, which each have different notification requirements.
- During the ‘tier 1’ period, which begins the day the child starts receiving care and ends seven days after it stops (i.e. one week after discharge), neonatal care leave may be taken in non-consecutive blocks of a minimum of one week (but only after the first seven days of care).
- During a ‘tier 2’ period, any remaining entitlement to leave must be taken in consecutive weeks. This intended to apply in circumstances where a parent is already taking a period of statutory family leave during the period the child is receiving neonatal care.
An employee taking another period of statutory family leave, such as maternity leave, may therefore elect to add a period of (tier 2) neonatal care leave onto the end of that period of leave, provided it is taken within 68 weeks of the child’s birth.
Notice requirements for leave
To be entitled to take neonatal care leave, an employee must give the required notice of their intention to take the leave. The notice should specify the date of birth, the date the child’s neonatal care starts (and, if applicable, when it ended), the date on which the employee intends to start the period of leave, and the number of weeks.
During a ‘tier 1’ period of neonatal care leave (see above), notice must be given in respect of each week of such leave, before the employee is due to start work on the first day of absence or as soon as reasonably practicable.
During a ‘tier 2’ period of leave, an employee must give a minimum of 15 days’ notice for a single week of leave, or 28 days’ for two or more consecutive weeks of leave.
The employer and employee may mutually agree to waive these notice requirements.
Protections
Employees who take a period of neonatal care leave are entitled to protections mirroring those that apply to other periods of family-related leave.
- The benefit of all terms and conditions of employment (other than remuneration) during a period of leave, remaining bound by any obligations.
- The right to return to the same job, or (if not reasonably practicable, and after taking other periods of statutory leave) another suitable and appropriate job.
- The right to be offered a suitable alternative vacancy if the employee’s role is redundant, either during a period of statutory neonatal care leave or for the ‘additional protected period’, which applies if the employee has taken at least six consecutive weeks of leave and continues for 18 months from the date of birth/adoption.
- Protection from being subjected to any detriment for taking, or seeking to take, neonatal care leave.
- Protection from dismissal if the reason (or principal reason) is that the employee took, or sought to take, neonatal care leave, or was selected for redundancy on this basis. This will be an additional category of ‘automatic unfair dismissal’.
Pay during statutory neonatal care leave
To be entitled to received statutory pay during neonatal care leave, an employee must fulfil the eligibility criteria (see Who is entitled to take the leave, above) and must have at least 26 weeks’ service by the ‘relevant week’. In birth cases, this means 26 weeks’ service by the end of the 15th week before the expected week of childbirth. If the child is born early (which might mean that neonatal care is more likely), the continuity of service requirement applies to the expected week, rather than actual week, of birth.
An employee must earn at or above the lower earnings limit to be entitled to receive neonatal care pay, calculated in the same way as applies for the purposes of entitlement to statutory maternity pay.
Statutory neonatal care pay is paid at the same rate as statutory paternity pay and statutory shared parental pay. It can only be paid in blocks of at least one week, which must be consecutive weeks if in a ‘tier 2’ period (see What is the right? above).
Notice requirements for pay
Notice requirements for receiving statutory neonatal care pay depend on whether the leave is in a tier 1 or a tier 2 period.
For tier 1, notice must be given within 28 days of starting the leave, for tier 2, notice for pay reflects the same notice requirements for leave.
Where it is not reasonably practical to give the appropriate period of notice, the employee must give notice as soon as is reasonably practicable. Both parties may agree to waive the notice requirements for entitlement to pay.
The Birketts view
The details of the new right to neonatal care leave and pay, as provided in the draft Regulations, broadly reflect what was expected. However, in seeking to allow parents flexibility over when the leave is taken, there are some complicated provisions relating to whether the leave is ‘tier 1’ or ‘tier 2’ leave, and the applicable notification requirements. This will require some careful attention when operating the new right in practice.
We would anticipate that employees who are taking maternity leave and whose baby requires a period of neonatal care, will most likely elect to take a period of ‘tier 2’ leave to extend the overall period of time off, paid at the statutory rate. ‘Tier 1’ leave might be more commonly taken by fathers (or partners) whose paternity leave has run out while their child is still receiving neonatal care.
Employers should consider introducing a new policy, setting out the new statutory right to neonatal care leave and any additional enhanced rights which they may choose to offer.
Note that whilst the Regulations are currently in draft form and awaiting parliamentary approval, it is unlikely that they will be significantly amended at this stage.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2025.