Yes they can. Neonatal care leave does not operate in the same way as shared parental leave, where there is a collective leave allowance. Both parents can take up the maximum of 12 weeks, even if they work for the same employer.
The Neonatal Care (Leave and Pay) Act 2023 is set to come into force from 6 April 2025 and will introduce new rights for employees to take additional leave and receive additional pay from day one of their employment where they are responsible for caring for a child in neonatal care.
This article sets out a summary of what the new rights mean for employees and what action employers can take action to ensure they are complying.
Neonatal care leave is being introduced to support employees whose baby is receiving, or has received, neonatal care.
For these new rights to apply, neonatal care must have taken place or have begun within the first 28 days of birth, starting from the day after birth, and care must have been provided for at least seven continuous days, also starting from the day after birth.
Neonatal care is defined with the new act as:
The new rights will be available to all employees from day one of their employment, but will not apply retrospectively and only apply in the case of babies born on or after 6 April 2025.
To be eligible for neonatal care leave, on the date of birth, the employee must be:
Neonatal care leave must be taken with 68 weeks of the baby’s birth, or in the case of adoption, within 68 weeks of placement or entry into the UK from overseas.
It's likely that an employee requiring neonatal care leave will also be on some form of other family-related leave, i.e. maternity leave. Therefore, it's expected in most cases that neonatal care leave would be tagged on to the end of any other leave period so that it is compensated for, even if the compensation is delayed after the care is provided.
The duration of neonatal care leave will depend on the length of time which the baby is receiving neonatal care, but the new rights cap the leave at a maximum of 12 weeks. For every week that the baby receives uninterrupted neonatal care, the employee is able to take one week of neonatal care leave. An 'uninterrupted week' shall start counting from the day after the care starts.
The new legislation sets out that there are two tiers of leave that can be taken. The key difference between the two is that tier 1 is intended to apply to employees who are not otherwise absent due to some other form of family leave, whereas tier 2 leave applies to employees who are currently absent from work on family leave, i.e. maternity leave, and want to tag their neonatal care leave onto the end of the leave period.
The notice requirements for neonatal care leave are similar to those for other forms of parental leave. The employee is required to give notice to their employer that they intend to take neonatal care leave and confirm:
The notice requirements differ slightly for tier 1 and tier 2 leave. For tier 1 leave, notice must be provided before the employee’s first day of absence or as soon as reasonably practicable. For tier 2 leave, 15 days’ notice must be given to take a single week of leave, or in the case of taking two or more consecutive weeks, 28 days’ notice must be given.
Employees taking neonatal care leave will receive statutory neonatal care pay (SNCP). The rate of pay and eligibility requirements are the same as those for other forms of statutory pay:
If eligible, the employee will receive either £187.18 per week or 90% of their average weekly earnings, whichever is lower. This rate is subject to change each April.
During any period of neonatal care leave, the employee will remain entitled to the same terms of employment other than their pay, which will be paid at the rate of statutory neonatal care pay, subject to meeting the eligibility requirement. This also depends on whether the employer offers any enhanced neonatal care pay or leave.
Employees on neonatal care leave also qualify for extended protection from redundancy, if they do not otherwise receive protection via some other type of parental leave, i.e. maternity leave. Once six weeks of neonatal care leave have been taken, this protection means that if an employee’s role becomes redundant during the neonatal care leave or within 18 months after it concludes, the employer must offer them a suitable alternative vacancy where one is available.
Employees are also protected against dismissal or being subject to a detriment for exercising their right to take neonatal care leave. If an employer dismisses an employee for any reason connected with taking neonatal care leave, it will be deemed automatically unfair, and the employee will not be required to have two years continuous service to bring an automatic unfair dismissal claim on these grounds.
Yes they can. Neonatal care leave does not operate in the same way as shared parental leave, where there is a collective leave allowance. Both parents can take up the maximum of 12 weeks, even if they work for the same employer.
No. Employees have the right to receive their statutory entitlement, both in terms of leave and pay, subject to eligibility as detailed in this article. However, there is no obligation on an employer to offer enhanced terms above the statutory provisions.
Not at the same time. If an employee was to have twins, both of which required neonatal care, then if each child was in neonatal care for three weeks at the same time, the employee would only be entitled to three weeks neonatal care leave, not six weeks cumulatively. If the two babies are having neonatal care at different times, then the employee would be entitled to neonatal care leave up to a maximum of 12 weeks for each, subject to eligibility.
In the worst case scenario, the loss of a child should be dealt with under the employer’s separate bereavement policy. The neonatal care leave and pay regulations will no longer apply when the child is not receiving neonatal care.
In light of the new regulations, employers should familiarise themselves with what the new rights mean and how they will work in practice. It's important that employers update their existing policies or introduce new policies as soon as possible which clearly set out their employees entitlement to these new rights. Employers may also wish to consider training for HR staff or line managers to educate them about these new rights.
If your business needs assistance with updating its existing policies or preparing new ones, or if you have any questions about the introduction of these new rights, please get in touch with Ashfords' employment team.
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