Statutory neonatal care leave: What HR needs to know

Author: Stephen Simpson

A new right for parents to take up to 12 weeks' neonatal care leave if their baby requires medical or palliative care is introduced on 6 April 2025. Now that the Government has published the remaining legislation needed to bring the new right into force, we set out what HR professionals need to know about neonatal care leave. 

The following guidance is based on draft Regulations that have not yet been finalised and may still be subject to change during their progress towards approval in Parliament.

Therefore, there may be revisions to the rules on statutory neonatal care leave by the time the Regulations are finalised - Brightmine will keep you apprised of any changes that are made.

In the meantime, we are working on further new resources to help employers implement the new right, including a model neonatal care leave policy.

Where and when neonatal care leave will be introduced

The Neonatal Care (Leave and Pay) Act 2023 and its supporting legislation applies in England, Wales and Scotland.

The new right is available to the parents of a child who is born on or after 6 April 2025.

The Neonatal Care (Leave and Pay) Act 2023 and its accompanying legislation does not apply in Northern Ireland because the implementation of employment laws is devolved there.

However, proposals to introduce neonatal care leave in Northern Ireland, which largely mirror the right planned for the rest of the UK, are contained in the consultation on the Good Jobs Employment Rights Bill. That consultation closed on 30 September 2024.

Eligibility for neonatal care leave

Neonatal care leave is available to all employees whose child is born on or after 6 April 2025, regardless of their length of service. However, there will be a qualifying period for statutory neonatal care pay - see below.

The leave is designed to assist new parents whose baby requires medical care in hospital. The leave is also available when medical care is being administered in any other location provided:

• the child was an inpatient in hospital and the care continues to be administered once the child leaves hospital;
• the care is under the direction of a consultant; and
• the care includes ongoing monitoring by, and visits to the child from, healthcare professionals arranged by the hospital where the child was an inpatient.

For these purposes, neonatal care is treated as being received continuously without interruption throughout any period spent being transported from one care setting to another.

In addition, the leave is available where the child is receiving palliative or end-of-life care.

The leave is available to the parents of a child whose neonatal care starts within a period of 28 days (starting from the day after the child's birth), where the child's neonatal care lasts for a period of at least seven days (starting from the day after the care begins).

Neonatal care leave must be taken to provide care for the child. If the child dies after leave has been accrued, the employee is still able to take the leave as this requirement is disapplied.

Length of neonatal care leave

Employees can take one week's neonatal care leave for every uninterrupted week their baby receives neonatal care, taken in week-long increments.

The minimum period of neonatal care leave is one week while the maximum period of neonatal care leave is 12 weeks.

Timing of neonatal care leave

Neonatal leave is available to take in two tiers:

• Tier 1 period: Begins when the child starts receiving neonatal care and ends on the seventh day after the child stops receiving neonatal care.
• Tier 2 period: Any other time after the tier 1 period ends during which the employee is entitled to neonatal care leave - entitlement ends 68 weeks after the child's birth.

Neonatal care leave taken in the tier 1 period can be taken in non-continuous blocks of a minimum of one week.

Neonatal care leave taken in the tier 2 period must be taken in one continuous block.

The cut-off date for neonatal care leave to be taken is 68 weeks from the baby's date of birth.

Mothers will normally already be on maternity leave when their entitlement to neonatal care leave kicks in, while fathers/partners may also already be on paternity leave. Neonatal care leave is in addition to maternity and paternity leave entitlements.

The 68-week cut-off date enables mothers to stay on maternity leave and add neonatal care leave onto the end of their maternity leave. Similarly, the 68-week cut-off date gives fathers/partners the leeway to take neonatal care leave after they have finished their two weeks' paternity leave.

Notice requirements for taking neonatal care leave

Neonatal care leave - notice during tier 1 period

For each week of absence during the tier 1 period, the employee must provide their notice before they are due to start work on their first day of absence in that neonatal care leave week or, where this is not possible, as soon as reasonably practicable.

There is no requirement for the employee taking leave during the tier 1 period to provide the notice in writing.

Neonatal care leave - notice during tier 2 period

If an employee intends to take neonatal care leave during the tier 2 period, they are required to give a period of notice:

• To take a single week of neonatal care leave, notice must be given no later than 15 days before the first day of the leave.
• To take two or more consecutive weeks' neonatal care leave, notice must be given no later than 28 days before the first day of the leave.

The employee's notice to the employer to take neonatal care leave during the tier 2 period must be in writing.

Neonatal care leave - waiving notice requirements

The employer and the employee can mutually agree to waive the statutory neonatal care leave notice requirements in both the tier 1 period and the tier 2 period.

Eligibility for neonatal care pay

To be eligible for statutory neonatal care pay, the employee is generally required to have:

• at least 26 weeks' continuous service with their employer by the end of 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.

The "relevant week" depends on the type of statutory family-related pay to which the employee is entitled:

• If the employee is entitled to statutory maternity pay or statutory paternity pay (birth), the relevant week is the 15th week before the expected week of childbirth.
• If the employee is entitled to statutory adoption pay or statutory paternity pay (adoption), the relevant week is the week in which they or the adopter are notified of being matched with the child for adoption purposes.
• Otherwise, the relevant week is the week immediately before the week in which the neonatal care begins.

Notice requirements for receiving neonatal care pay

Employees taking neonatal care leave must give their employer notice of the weeks during which they wish to claim statutory neonatal care pay:

Neonatal care pay - notice during tier 1 period

For statutory pay weeks beginning in the tier 1 period, notice must be given before the end of the period of 28 days beginning with the first day of the first statutory pay week to which the notice relates.

Neonatal care pay - notice during tier 2 period

For a single statutory pay week beginning in the tier 2 period, notice must be given no later than 15 days before the first day of the statutory pay week to which the notice relates.

For two or more consecutive statutory pay weeks beginning in the tier 2 period, notice must be given no later than 28 days before the first day of the first statutory pay week to which the notice relates.

Neonatal care pay - waiving notice requirements

The employer and the employee can mutually agree to waive the statutory neonatal care pay notice requirements in both the tier 1 period and the tier 2 period.

Terms and conditions during neonatal care leave

Except for normal pay, which is replaced by statutory neonatal care pay if the employee is entitled to it, all terms and conditions of employment should remain in place during an employee's neonatal care leave. This includes the accrual of annual leave.

Employers could consider paying employees enhanced neonatal care pay, particularly if they are already enhancing maternity, paternity and adoption pay.

Some forward-thing employers have already introduced contractual neonatal care leave and pay, often as part of a wider equalised parental leave policy. Employers that have introduced neonatal care leave include: Asda; Belfast City Council; Deloitte; Greater London Authority; Lewis Silkin; Marks and Spencer; M&G; Phoenix Group; Sony Music; UCL; University of St Andrews; and Virgin Media O2.

In our Family-related leave research 2024 (conducted in January and February 2024), 25.3% of respondents offer paid neonatal care leave. However, the median number of days offered among these respondents is five days, suggesting that even employers that have already introduced neonatal care leave will have to revisit their approach in advance of the new law. Our research is based on responses from 364 organisations from across the public, private and not-for-profit sectors.