Quite some time following the original enactment of the Neonatal Care (Leave and Pay) Act 2023 (“the Act”), neonatal care leave and pay will, as confirmed by the government on 20 January 2025, come into force on 6 April 2025.
This legislative change is welcomed by many, given the huge struggles faced by working families who currently don’t have any specific legal support in the event of their newborn being unwell in hospital at the time of having return to work. Whilst many employers currently provide discretionary support, having a day one legal entitlement dedicated explicitly to neonatal care leave, alongside a statutory pay entitlement for this leave, provides much-needed additional reassurance and clarity for employees during this difficult time.
The Act will be accompanied by regulations, which are currently awaiting parliamentary approval. These regulations should hopefully provide some practical guidance on the implementation and management of neonatal care leave alongside the Act. In the meantime, we have answered below some key questions in respect of the new entitlement to help both employers and employees prepare for the new entitlement coming into effect.
What is statutory neonatal care leave?
Neonatal care leave under the Act is leave that will be available to employees to enable them to take time away from work specifically to care for their babies who are under neonatal care (i.e. a baby who requires special care as a result of premature birth or illness). The intention behind this is to provide additional support to employed parents in such situations, and hopefully alleviate concerns which are currently in place, such as whether they can take any additional leave (paid or unpaid) or worrying about using up their whole annual leave entitlement.
Eligible parents will be entitled to take up to 12 weeks of statutory neonatal care leave under the Act (and, if eligible, pay for this time). This entitlement is on top of any other leave that they may be entitled to, including maternity leave, paternity leave and shared parental leave.
The 12-week maximum applies even in the case of multiple births.
How is statutory neonatal care leave taken?
Statutory neonatal care leave can be taken by eligible employees in blocks of a week. Each week their baby remains in hospital, they will be entitled to a week’s leave, up to the maximum entitlement of 12 weeks leave (the minimum entitlement being one week’s leave).
All neonatal care leave must be taken within 68 weeks following the birth of the baby requiring the neonatal care.
Who can claim statutory neonatal care leave?
An employee will be entitled to claim neonatal care leave if they are the parent of a baby who:
- is admitted into neonatal care at hospital up to 28 days old; and
- has a continuous stay in hospital of at least seven consecutive days (without interruption) after the day the neonatal care starts.
Neonatal care leave will be a day one right for eligible employees.
Is statutory neonatal care leave paid?
An employee will be eligible for statutory neonatal care pay during their leave if they have:
- been employed by their employer for a continuous period of at least 26 weeks at the “relevant week” (as defined under the Act); and
- meet the lower earnings threshold (currently £123 but set to increase in April 2025 to £125).
Therefore, whilst the entitlement to statutory neonatal care leave is a day one right, there is a qualifying period in order to employees to be entitled to statutory pay for such leave.
What are the notice requirements for statutory neonatal care leave and pay?
There are notice provisions which will apply in respect of both statutory neonatal care leave and pay.
Differing from other types of family friendly leave, the notice requirements for requesting statutory neonatal care leave are proposed to differ based on when this leave is taken. This is separated into two periods within the draft regulations, known as “a tier 1 period” or “a tier 2 period”.
A tier 1 period refers to the period beginning with the day the child starts receiving neonatal care and ending on the 7th day after the day the child stops receiving neonatal care (i.e. ending one week after discharge from hospital).
During a tier 1 period, there is no requirement for specific advance notice to be provided, providing more flexibility when taking leave. Eligible employees will be required to provide notice before they start work on their first day of absence as a result of taking such leave. Notice must then be provided in respect of each week taken as statutory neonatal care leave, with such leave being able to be taken in non-consecutive week blocks during the tier 1 period.
A tier 2 period refers to any period of time which is not a tier 1 period but where the employee is entitled to take statutory neonatal care leave.
During a tier 2 period, notice must be given at least 15 days before the employee wishes to take a week of leave or 28 days prior notice must be given if they want to take two or more consecutive weeks of leave.
This notice which the employee gives to their employer should specify key information such as, but not limited to:
- their child’s date of birth (or placement date for adoption)
- the date the child started to receive neonatal care;
- the date the employee wants the period of statutory neonatal care leave to begin; and
- the number of weeks the notice is being given from.
The notice requirements for statutory neonatal care pay also depend on whether leave is taken in the tier 1 or tier 2 period.
- If leave is taken in the tier 1 period, then notice must be given within 28 days of starting the leave; and
- If leave is taken within tier 2, then the notice requirements for pay are the same as the notice requirements for leave.
Where it is not reasonably practicable for the required notice to be given, the employee must give notice as soon as is reasonably practicable.
In both cases (i.e. notice for leave and notice for pay), the employer and employee can mutually agree to waive the statutory notice requirements.
What protections does the employee have when taking statutory neonatal care leave?
Employees who take statutory neonatal care leave will have the same protections as those associated with other types of family-friendly leave.
For example, these protections include:
- the individual will remain an employee of the business;
- the employee will benefit from and remain bound by such terms which would have applied but for their absence from work (excluding remuneration);
- protection from detriment or dismissal as a result of exercising their right to take leave; and
- the employee has the right to return to the same job after taking statutory neonatal care leave.
What should employers do to prepare?
Employers should familiarise themselves with the entitlements for statutory neonatal leave to make sure they can answer questions from their employees in respect of this new entitlement.
Whilst the regulations remain in draft form at this time, subject to parliamentary approval, it is not anticipated that there will be significant amendments to these. Therefore, employers will need to take time to understand the provisions relation to whether leave is “tier 1” or “tier 2”, and the corresponding notice requirements for this, alongside for employees to receive statutory neonatal care pay.
Employers can put in effect a number of measures to help prepare this entitlement, for example:
- Include a neonatal care leave policy alongside their other family-friendly leave and business practices and policies (or update any existing policy currently in place on such leave to algin with the new statutory entitlement). It is important to make this policy accessible to employees;
- As with other types of family friendly leave, employers can opt to provide enhanced neonatal care leave (and pay). In the event that an employer opts to do so, this should be clearly outlined within their policy, along with any eligibility requirements for receiving this enhanced pay, so that this is clear for employees;
- Update employment contract templates to ensure that neonatal care leave is included within the “other paid leave” clause; and
- Offering training in respect of the new statutory right, to ensure that line managers and HR Team members are clear on the entitlement and understand the businesses’ position on neonatal care leave going forward so that they are equipped with dealing with neonatal enquiries. It is also worth considering providing training to all employees within the business in respect of this new entitlement so that they are aware of the legislative update and actions they should take if they need support.
Please contact our Employment Law team should you have any questions or require assistance.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
