The Neonatal Care (Leave and Pay) Act 2023 will come into force on 6th April 2025, the Government has announced.
The legislation is designed to support employees who have parental or a personal relationship (defined in the regulations) with a baby needing neonatal care. It goes without saying, that we genuinely hope that none of your employees need to take this type of leave; but if an employee does need to take neonatal care leave, a sympathetic and supportive approach is called for.
The Regulations, as usual, are not simple; but we will try and provide some clarity. We must stress at this stage; the Regulations are in draft from. We do not envisage any changes; but the following is based on the draft regulations.
Eligibility
To be eligible to Neonatal care leave, the employee must be the child’s parent, partner of the mother, or adoptive parent or partner, providing 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 neonatal care leave is a day one right: the employee does not need to have any service to qualify for this right.
Statutory Neonatale Care Leave
In summary:
- Entitlement arises after the first 7 days of neonatal care provided to the child; but neonatal care leave must start within 28 days of the child’s birth.
- Employee can take one week of neonatal care leave for each week the child is in neonatal care capped at a maximum of 12 weeks of leave.
- Neonatal care leave ends after a period of seven days after the baby is discharged from neonatal care.
- Neonatal care leave is in addition to other entitlements such as maternity, paternity, shared parental, adoption leave; and an employee can elect to add a period of neonatal leave onto the end of the existing statutory leave providing it is taken within 68 weeks of the child’s birth.
To complicate matters there are two types of leave:
- 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 NCL must be taken in consecutive weeks. This is 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.
Notice Requirements
To qualify for 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 Neonatal care leave, and the number of weeks.
During a ‘tier 1’ period of Neonatal care leave, 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 Neonatal care 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.
Statutory Neonatal Care Pay
To be entitled to received Statutory Neonatal Care Pay during Neonatal care leave, an employee:
- Must be eligible for Neonatal care leave (see above); and
- Must have at least 26 weeks’ service by the ‘relevant week’ (15th week before the EWC); and
- Must earn at or above the lower earnings limit to be entitled to receive NCP.
Neonatal care pay will be the same rate as statutory paternity pay and statutory shared parental pay. It can only be paid in blocks of at least one week.
Employee Protection
As with other legislation in respect of employees exercising their right to this statutory entitlement protection will be in force to protect employees (from being unfairly dismissed or suffering other detrimental treatment).
Commentary
In reality most parents may be either on maternity leave, paternity (or shared parental) or adoption leave when a child is in neonatal care, so any entitlement to neonatal care leave may simply be added to the end of the maternity, paternity, shared parental, adoption leave period subject to the employee giving the appropriate notice.
Where an employee is not on a period of statutory leave, then the employee should comply with the notice requirements detailed above – an employer and employee may agree to waive these notice requirements, given the circumstances.
Given the entitlement is at a statutory rate and capped at twelve weeks, parents may still find themselves in a situation of having to return to work before they would really like, and employers may wish to look at other additional ways they can support their employees through this difficult period.
Employers should consider looking at updating employee contract, employee handbooks and policies and procedures.
