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Eligible employed parents whose new-born baby is admitted to neonatal care will be able to take 12 weeks paid leave, in addition to their other leave entitlements such as maternity and paternity leave.

Background

In July 2019 the government published a consultation, Proposals to Support Families, a part of which canvassed the idea of introducing neonatal leave and pay. The 2020 Budget saw confirmation that this would be going ahead and the government responded to the consultation.

It was thought that this new entitlement would be included in an Employment Bill. However the government instead decided to support a Private Members’ Bill. This Bill received the Royal Assent on 24 May 2023 to become the Neonatal Care (Leave and Pay) Act 2023. (The House Commons Library has published a useful briefing.)

The Act is very much an enabling Act, i.e. it empowers the Secretary of State to make further regulations. The Act inserts new s. 80EF-80EI into the Employment Rights Act 1996 covering the leave aspects of the new right and amends social security legislation to deal with the pay aspects. As for when this new right will come into force, the government has said that the necessary secondary legislation will be laid ‘in due course’ – likely to be sometime in 2025.

Likely shape of the new right

Currently, parents of a baby in neonatal care must rely on their existing statutory leave entitlements to enable them to be off work while the baby is in hospital. The original consultation asked for views on the design of this new entitlement; associated practical considerations; and the implications for employers and employees. Specifically, it asked about eligibility and qualifying conditions, the length of entitlement and when the entitlement can be taken, notice and evidence requirements, and employment protections and parents’ right to return to the same job.

Based on the 2020 response to the consultation, the following are likely to be the new right’s main features:

• Parents of babies who are admitted into hospital as a neonate (28 days old or less) will be eligible for neonatal leave and pay if the admission lasts for a continuous period of seven days or more.
• As to which care givers should be entitled to neonatal leave and pay, the government intends consulting further before defining a ‘neonatal parent’.
• Neonatal leave will be available to an employee from the first day of employment.
• Entitlement to statutory neonatal pay will be available to those employees who have 26 weeks’ continuous service and earn more than the lower earnings limit.
• Employers will reclaim the statutory payment from the government by reducing their NICs. Large employers will be able to reclaim 92% whilst small employers (those who have paid £45,000 or less in gross NICs the preceding tax year) will be able to recover 103%.
• The total amount of statutory neonatal leave and pay available to parents will be capped at a maximum of 12 weeks.
• Neonatal leave will be taken after maternity/paternity leave through prescribing a set period in which neonatal leave and pay must be taken.
• Neonatal leave will normally be required to be taken in a continuous block of one or more weeks.
• The intention is to take a two-tiered approach to the notice requirements:
  • very short, informal, notice will be acceptable for neonatal leave taken very soon after the date of the neonate’s admission to hospital, and
  • a longer period of notice (one week) will be required where the neonatal leave begins at a stage where the child has not been recently admitted into neonatal care
• Parents who qualify for neonatal leave will be afforded the same employment rights and protections as parents taking other relevant family-related leave, i.e. protection from detriment or discrimination arising from them taking, or seeking to take, neonatal leave.