Neonatal Care Leave and Pay

Every tiny heartbeat of a newborn in neonatal care is critical. The overwhelming emotions that parents feel with every breath their baby takes are invaluable. However, as there are currently no specific employment protections for families with neonates, concerns about time off work can add an additional emotional burden. According to a 2019 survey by Bliss, a charity for premature and sick babies, 36% of fathers and partners were signed off sick whilst their baby was being treated in neonatal care, and 11% of parents left their jobs. As a result the government are now introducing protection for families by way of the Neonatal Care (Leave and Pay) Act 2023.

This new piece of legislation will provide an entitlement to additional leave as a day one right to thousands of working families with babies in neonatal care. These new measures are set to eliminate the choice of a parent between keeping their job and spending priceless time with their newborn baby. This leave is in addition to other statutory family leave to which the employee may be entitled to. Below is a summary of the key points of statutory neonatal care leave (NCL):

•         An employee is entitled to one week of NCL for each qualifying week their child spends in neonatal care, up to a maximum of 12 weeks. It must be taken in weekly blocks.

•         The neonatal care must begin within 28 days of the child’s birth and last for a continuous period of at least seven days.

•         The employee must have a qualifying parental or other personal relationship with the child. NCL may be taken where a child has been adopted, including from overseas, as well as in parental order (surrogacy) cases.

•         Neonatal Care Leave may be taken in addition to other types of statutory family leave but must be taken within the first 68 weeks of a child’s birth.

•         Employees must comply with the notice requirements.

•         Employees have the right to return to the same job (or, in certain circumstances, to return to a suitable and appropriate alternative job).

•         Employees are protected from detriment or dismissal relating to NCL

•         Employees who are taking or have recently returned to work from NCL are entitled to be offered suitable alternative employment on redundancy in priority to other employees.

Neonatal Care Leave is certainly not  straight forward to navigate, particularly as this is divided into two tiers.

Tier 1 covers the initial period of neonatal care, from the beginning of care until seven days after the newborn stops receiving it. If the newborn stops receiving care but then resumes neonatal care within 28 days of birth a subsequent Tier 1 period begins. During this time, parents can take leave in non-consecutive weeks allowing them to be present during the most critical moments without the pressure of absence from work.

Tier 2 begins after the Tier 1 period ends and extends up to 68 weeks after the baby’s birth. This period is designed for longer-term support, those entitled to the leave need to take it in one consecutive block. This ensures that parents can fully dedicate their time to their baby’s ongoing needs without the disruption of intermittent leave. For parents to start neonatal leave they must give their employer notice. How notice is given and when leave starts is subject to each tier of neonatal leave.

Notice of NCL

Where an employee intends to take NCL during a tier 1 period, 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 in that week.

• Where that is not reasonably practicable, as soon as is reasonably practicable.

Notice of NCL during a tier 1 period does not need to be in writing. The practical effect of the notice provisions is that employees can take NCL with minimal or no advance notice in the tier 1 period.

Where an employee intends to be absent during a tier 2 period, they must give notice to their employer in writing:

• For a single week of NCL, no later than 15 days before the first day of leave to which the notice relates.

• For two or more consecutive weeks of NCL, no later than 28 days before the first day of leave to which the notice relates.

Withdrawal of notice (NCL)

An employee who has given notice to take leave beginning in a tier 2 period may withdraw the original notice in writing:

• Where the original notice was in relation to a single week of NCL, no later than 15 days before the first day of the week to which the original notice relates.

Where the original notice was in relation to two or more consecutive weeks of NCL, no later than 28 days before the first day of the week to which the original notice relates.

Statutory Neonatal Care Pay

Alongside an entitlement to leave, the Neonatal Care (Leave and Pay) Act 2023 also provides for parents to be eligible for statutory neonatal pay (SNCP). Below is a summary of key points:

·       The employee must have a parental or other personal relationship with a child who is receiving, or has received, neonatal care. This includes adoption and parental order cases.

•         The neonatal care must begin with 28 days of the child’s birth and last for a continuous period of at least seven days.

•         The employee must have at least 26 weeks’ continuous service ending with the relevant week. The relevant week in birth cases is the week immediately proceeding the 14th week before the Expected Week of Childbirth, in adoption cases the week in which the adopter is notified of being matched with the child for the purposes of adoption and in any other cases, the week immediately before the week in which the neonatal care starts.

•         The employee must have received normal weekly earnings, for a period of eight weeks ending with the relevant week, of not less than the lower earnings limit.

•         SNCP is paid at the same rate as statutory paternity pay or statutory shared parental pay.

•         SNCP may be paid for a maximum of 12 weeks and is payable within the first 68 weeks after the child’s birth.

•         Employees must comply with the notice requirements.

Parents will be eligible for statutory neonatal care pay if they are an employee. The definition of an employee for the purposes of Statutory Neonatal Care Pay is a person who is gainfully employed in Great Britain either under a contract of service or in an office (including an elective office) with earnings. This definition extends neonatal pay to a wide range of people including most agency workers, apprentices and those working under the age of 16.

Relationship with other statutory leave

Employees can add Neonatal Care Leave to the end of other statutory family leave, such as maternity or paternity leave, as long as NCL is taken within 68 weeks of the baby’s birth. This prevents the loss of other statutory leave.

Regulation 12 addresses situations where other statutory leaves (like maternity, paternity, adoption, parental, shared parental leave, or parental bereavement leave) interrupt NCL. The most likely situation where this may arise is where a father or mother’s partner gives notice to take a period of paternity leave, and then needs to take NCL before the date specified on the notice to take paternity leave, but the planned statutory leave starts whilst they are on NCL.

If NCL during a Tier 1 period is interrupted by statutory leave, NCL ends before the statutory leave starts. After the statutory leave:

• If still in Tier 1, the remaining NCL must be taken immediately after the statutory leave.

• If in Tier 2, the remaining NCL must be taken consecutively with any other Tier 2 NCL.

Employees cannot automatically resume neonatal care leave which started in Tier 1 but was interrupted by another statutory leave period which ends in Tier 2. The required notice will need to be provided or the employer can agree to waive this. They also cannot take NCL in Tier 2 if they know it will be interrupted by another statutory leave.

The new regulations also cover neonatal care leave and pay entitlements for multiple births, the baby’s death, redundancy during NCL, and protections against detriment for taking NCL. If an employee is dismissed during a period of neonatal care leave it may be found as automatic unfair reason for dismissal if the principal reason for dismissal is connected to the fact the employee took or sought to take or make use of the benefits of Neonatal Care Leave or the fact the employer believed the employee was likely to take Neonatal Care Leave.

When will these changes take effect?

It’s important to note that the Regulations to implement these changes are still subject to Parliamentary approval, but it is anticipated that the changes will take effect from 6 April 2025.   This means that employers have a limited time to get things in order. Employers should consider updating their policies and making managers aware of this new entitlement. Preparing now will help mitigate any potential disruptions and ensure that both employees and employers are ready to fully support the needs of families during these critical times. By staying informed and proactive, organisations can foster a more supportive and compassionate workplace.