Statutory neonatal care leave and pay: What we know so far
Author: Stephen Simpson
The Government has given its backing to the Neonatal Care (Leave and Pay) Bill, which is a Private Members' Bill sponsored by MP Stuart McDonald. This paves the way for the introduction of statutory neonatal care leave and pay. What do we know about this new type of family-friendly leave and what has the Government said about the timetable for its implementation?
Jurisdiction
The entitlement to neonatal care leave and pay, which will be set out in the Neonatal Care (Leave and Pay) Act 2022 and its secondary legislation, will apply in England, Wales and Scotland.
However, the entitlement will not apply in Northern Ireland because the implementation of employment laws is devolved.
Eligibility for neonatal care leave
Neonatal care leave will be a right available to all employees, regardless of their length of service. However, there will be a qualifying period for statutory neonatal care pay - see below.
The leave will be designed to assist new parents whose baby requires medical or palliative care in hospital or another care setting (to be specified in the legislation).
The leave will be available to parents of babies who are admitted up to the age of 28 days, where the baby has a continuous stay in hospital of at least seven full days.
Minimum period of neonatal care leave
While the maximum duration of neonatal care leave is still to be decided, the minimum duration will be one week.
It will be possible for an employee to start their leave on any day of the week.
Timing of neonatal care leave
Legislative timetable
74. HM Revenue & Customs and commercial payroll providers usually require around 18 months' lead-in time to implement the changes which enable employers to administer new statutory payments.
75. If the Bill successfully completes all of its Parliamentary stages in 2023 it is likely that implementation will take place 18 months after that date.
For mothers, neonatal care leave will be an additional period of time added to the end of their maternity leave.
For fathers/partners who are eligible for paternity leave, neonatal care leave will be taken at the end of their paternity leave.
There will be a cut-off date for neonatal care leave to be taken. While the period after the baby's birth when the leave must be taken has not been finalised, the Bill states that this period will not be less than 68 weeks from the baby's date of birth.
Eligibility for neonatal care pay
To be eligible for statutory neonatal pay, the employee will be required to have:
- at least 26 weeks' continuous service with their employer by the end of the week immediately before the one in which neonatal care starts (the "relevant week"); and
- normal weekly earnings over an eight-week period ending with the end of the relevant week that are not less than the lower earnings limit for national insurance contribution purposes.
While the maximum duration of statutory neonatal care pay has not been confirmed, the Bill clarifies that it will not be less than 12 weeks.
Employment protections
Employees on neonatal care leave will have similar rights and protections to those requesting other family-related leave. These include:
- protection against dismissal and detriment for requesting or taking a period of neonatal care leave; and
- the right, in certain circumstances, to return to the same job they were employed in before their absence.
Notice and evidence requirements
The notice and evidence requirements to take neonatal care leave, which will be fleshed out in secondary legislation, are expected to be "light touch" to take account of the sensitivity of the situation for parents.
For example, the employee is unlikely to have to provide details, or evidence, of their baby's condition to their employer.
If the Government follows the same approach as it did with parental bereavement leave, the legislation would take a two-tiered approach:
- For neonatal care leave taken very soon after the date of the baby's hospitalisation, informal notice would be sufficient and the employee would be able to take the leave straightaway.
- Where the neonatal care leave begins at a stage where the baby has not been recently admitted into neonatal care, a period of notice would be required.
However, the employee would have to give written notice to their employer of the period for which they are claiming statutory neonatal care pay and they may have to provide proof of entitlement to the statutory payment (for example in the form of a declaration).
