The Government have proposed to introduce new rights for eligible employees to receive ‘Neonatal Leave’ and ‘Neonatal Pay’ to support families when a baby is born prematurely or sick and receives care in a neonatal unit.  This article discusses what those rights are expected to be and when they are expected to come into force.

What is neonatal care?

Neonatal care is the type of care a baby receives in a neonatal unit if they are born premature, sick, or with a low birth weight.

Why new rights for employees are being introduced?

The Government explain: ‘Currently, parents of a baby or babies in neonatal care rely on their existing statutory leave entitlements to enable them to be off work while the baby is in hospital. This means that parents spend a proportion of their Maternity Leave or Paternity Leave with the baby in hospital.

As a result, these parents are unable to spend time bonding with their child outside of a medical environment for at least a proportion of their Maternity Leave or Paternity Leave. Where the baby has been in neonatal care for a prolonged period, fathers and partners often rely on annual leave or unpaid leave in order to be with the mother and baby in hospital after their entitlement to statutory Paternity Leave and Pay has elapsed.’

‘The Government acknowledges that current leave and pay entitlements do not adequately support parents in circumstances where their child is born sick or prematurely and requires neonatal care.’

Future rights are expected 2023

The proposal that employees should be entitled to a new ‘Neonatal Leave’ and to ‘Neonatal Pay’ was added to the Good Work Plan to support families.

The Government have accepted these proposals and have confirmed that new statutory employment rights will be introduced for parents. It is expected that these rights will come into force in 2023.

Expected statutory entitlements and eligibility

We expect the following entitlements to be introduced, however legislation has not yet been drafted and so they may be subject to change.

  • Parents of babies which 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 7 days or more.
  • The total amount of statutory Neonatal Leave and Pay available to parents is expected to be capped at a maximum of 12 weeks
  • Entitlement to leave will be a day one employment right
  • Entitlement to ‘Statutory Neonatal Pay’ will be subject to the employee having a certain amount of continuous service (which is currently unspecified) and minimum earnings (which is currently unspecified, although this tends to correlate with the Lower Earnings Limit).
How the leave may be taken, notice and evidence requirements

Provisions are expected to be made so that Neonatal Leave will be taken after the employee’s Maternity or Paternity Leave. Furthermore, it is expected that:

  • The leave must be taken in a continuous block of one or more weeks.
  • Notice requirements will be very short, although they will depend on the circumstances. The maximum notice that can be asked for is expected to 1 week.
  • Where employers may require evidence, they may be able to ask for a written declaration from the employee.
Protections

The same employment rights and protections will be afforded as with other forms of family leave, namely protection from:

  • Detriment for having exercised the statutory right (such as disciplinary action or unfair dismissal)
  • Protection from discrimination
  • The right to return to the same job after the leave or a combined period of Neonatal and other forms of statutory family leave (if absent for 26 weeks or less).
Definitions

Parent – The definition of a ‘parent’ is to be decided (consideration shall be given to which care givers should be included).

Neonatal care – The definition of ‘neonatal care’ is to be decided (consideration shall be given to those transferred to relevant palliative and outreach services).

What employees can do currently

There are various family friendly statutory rights which may currently be utilised to take time off work to care for a new baby, including: maternity leave, paternity leave, shared parental leave, adoption leave, and parental leave. Annual leave may also be agreed where appropriate and time off for dependants could potentially be used in the very short-term to make necessary arrangements for care in an unexpected situation.

Employers are also free to offer the option of additional paid or unpaid leave as may be appropriate, either in accordance with any applicable policy or at their discretion.

Although the new rights discussed on this page are not currently in effect, if you are deciding how much additional time off to offer an employee beyond their existing statutory entitlements, the new proposals could be used as guidance for what a reasonable amount of time could be.

Further information

The full response to the consultation about the new rights and what they should entail is available to read on here.

We have a wealth of information about other statutory family friendly leave, listed above. Follow the links to find out more or use our ‘Related Articles’ tab at the top of this page.

The Parental Bereavement (Leave and Pay) Act 2018 recently introduced a new “day one” right to statutory bereavement leave, in the devastating event that an employee who becomes a bereaved parent. It covers parents who suffer a stillbirth 24 weeks or more into pregnancy, up to children under the age of 18 years. Find out more about rights and entitlements to support with parental bereavement.

Legal considerations

Employees are not yet legally entitled to this specific type of pay and leave. However, as discussed, the proposal demonstrates what is likely to be considered a reasonable minimum amount of time to afford a parent who finds themselves in such a situation. Therefore, this may be used by employers as guidance for what to offer if they wish to provide further support to an employee who finds themselves facing such difficulties before the law is enforced.

At the time of writing, there is currently no legislation drafted for these rights, however it is expected to be added to the new Employment Rights Bill.

There are numerous statutory rights eligible employees must be afforded which may be applicable in these difficult circumstances. Please see the links to the guidance notes above and our ‘Related Articles’ tab at the top of this page details on the legal obligations and requirements.

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