However, the Labour Government has made a series of changes to employment law recently and it has now been confirmed that they will introduce the Neonatal Care (Leave and Pay) Act 2023.

An Overview Of The Neonatal Care (Leave and Pay) Act 2023

The new Act will take effect from the 6th April 2025 and provides neonatal leave and pay for families whose children have been admitted to neonatal care up to 28 days old and who have continuously stayed in hospital for 7 days or more.  

Parents can take up to a maximum of 12 weeks of neonatal care leave which must be taken within 68 weeks of the baby’s birth (or placement or entry in the country for adoption cases). 

The length of neonatal leave and pay available to employees is dependent on the amount of care required by the baby. For instance, if a baby only requires 6 weeks of care, then the employee can only take up to 6 weeks of leave. 

For employees who have more than one baby that requires neonatal care at a time, they are only entitled to take up to 12 weeks as a maximum. The 12 weeks does not apply to each baby that requires care.

What Counts As Neonatal Care?

For those wanting to access neonatal leave and pay, it is important to understand what counts as neonatal care. There are three potential forms of care that will constitute neonatal care:

1. Any medical care the baby receives in the hospital
2. Medical care, undertaken by a consultant or healthcare professional, following discharge from hospital that requires ongoing monitoring and further visits
3. Palliative or end-of-life care

Who Is Eligible For Neonatal Leave And Pay?

To qualify for neonatal leave and pay, you must:

• Be an employee
• The employee must be one of:
  • The baby’s parents
  • The baby’s intended parents (for example in surrogacy)
  • The partner to the baby’s mother provided that they will have the responsibility for raising the child
• Your baby must be born on or after 6 April 2025 
• Your weekly gross earnings must be not less than the lower earnings limit, which is currently £123 per week for 2024/2025
• Continuously employed by your employer for a period of at least 26 weeks before the relevant week 

The statutory neonatal care pay, provided that the employee is entitled to receive this, will be at the statutory rate (£187.18 from April 2025), similar to other statutory family leave payments. 

Phases For Neonatal Leave And Pay

The new legislation outlines two distinct phases for neonatal leave and pay. 

1. The first phase, “Tier 1”, starts when the child begins neonatal care (after the seven-day qualifying period) and concludes seven days after the care ends. During this phase, leave can be taken in non-continuous blocks of at least one week. 
2. The second phase, “Tier 2”, covers the remaining part of the 68-week period and requires the leave to be taken in one continuous block.

Notice Requirements

Employees must provide reasonable notice as soon as practical regarding their neonatal care leave. Employers may request medical evidence when notice is given.  

Any notice should include the following:

• The employee’s name
• The date of birth or date of placement of the baby
• The start date/dates of the intended care
• If applicable, the date the care ended
• The dates on which the employee wishes to take the leave
• The number of weeks of leave the notice is being given for
• That the leave is being taken to care for the baby
• Confirmation, that due to their relationship with the baby, the employee is eligible to take the leave

The notice requirements differ between the two tiers, with Tier 1 having a shorter notice period. 

However, both the employer and employee can agree to waive these notice requirements at the employer’s discretion.

Employee Benefits

Employees eligible for neonatal leave and pay will be provided with the following rights under the Neonatal Care (Leave and Pay) Act:

• Entitlement to a ‘day one’ right for neonatal care leave can be used in addition to existing statutory family leave entitlements.
• Employees remain entitled to the same terms and conditions of employment, except in relation to pay.
• Employees are entitled to return to their original role after having a single period of leave.
• Employees who have taken 6 weeks of continuous leave benefit from protection from redundancy. This includes the right to be offered a suitable alternative vacancy applying from the day after they return from leave up until the child turns 18 months old.
• Employees are provided protection from detriment and dismissal for taking the leave provided under the Act. Dismissal of an employee for the reason connected with taking the leave will be automatically unfair.

The Act therefore ensures that parents of newborn babies requiring neonatal care are supported by providing adequate leave and support.

Employer Considerations Regarding Neonatal Leave And Pay

In terms of practical arrangements regarding the new rules, employers should consider adopting the following procedures:

• New Policies – Employers should consider putting in place a new neonatal care leave policy to set out the provisions being brought in by the Act. It is essential that employers should notify employees of the changes to their rights and provide an explanation of their entitlements. 
• Absence Management – In terms of absence management, employers should be mindful that the employee has gone through a traumatic experience and therefore should approach time off requests carefully to avoid discrimination claims. 
• Adequate Training – Employers should also make provisions to provide line managers and HR with adequate training to allow them to handle neonatal leave and pay requests appropriately. 
• Payroll Updates – Employers must also take steps to ensure that payroll systems can calculate the adjustments to employees’ pay in accordance with the neonatal care payments. 

If you require any assistance regarding the matters related to neonatal leave and pay outlined in this article, our expert team of employment lawyers can help. Based across the three Kitson Boyce offices in Torquay, Plymouth and Exeter, our employment law solicitors can assist you if you are looking to implement the new provisions outlined in the new Act. To discuss your circumstances further, simply contact us via the form below or by emailing [email protected].