On 20 January 2025, the government confirmed that the right to statutory neonatal care leave and pay will take effect, as anticipated, from 6 April 2025. Its introduction aims to address the issue of parents of children who go into neonatal care having to use up a proportion of their existing family leave rights (maternity, paternity, etc. leave) to care for their baby in hospital.
Definition of neonatal care
For these purposes, neonatal care means:
- Medical care provided in a hospital, or
- Where a child has been an inpatient in a hospital, medical care provided after discharge from hospital, under the direction of a consultant, which includes ongoing monitoring and visits by healthcare professionals arranged by the hospital, or
- Palliative / end of life care
which starts within 28 days of the child's birth, and continues for a period of at least seven consecutive days.
Eligibility for neonatal care leave
The right to neonatal care leave will apply from day one of employment, and all employees who are parents of a baby born on or after 6 April 2025 who is receiving neonatal care, and who have or expect to have responsibility for the baby's upbringing, will be eligible. Parents include adoptive parents and intended parents under a surrogacy arrangement. The parent's partner will also be eligible, provided that they live with the parent and that they too have or expect to have responsibility for the baby's upbringing.
Parents or partners who have not accrued the 26 or 52 weeks' service required to take paternity or parental leave may take neonatal care leave, and employers will need to be aware of this until paternity and parental leave become day one rights when the changes set out in the Employment Rights Bill take effect.
Accrual of leave
The minimum entitlement will be one week's neonatal care leave, and the maximum entitlement will be 12 weeks. Employees will become entitled to one week of neonatal care leave for each week that their baby spends in neonatal care, up to the maximum. It is worth noting, however, that an adoptive parent and their partner will only qualify for neonatal care leave in respect of weeks of neonatal care that fall after the date the child has been placed with them for adoption (or, for overseas adoptions, after the date the child has arrived in Great Britain).
There are slight differences in how an employee's right to neonatal care leave accrues if more than one child from the same pregnancy receives neonatal care. In such cases, the employee will accrue entitlement to neonatal care leave (and pay, if eligible) separately in respect of each child. However, if more than one child is receiving neonatal care leave at the same time, the employee's entitlement during that period only accrues for one child. For example, if an employee has or adopts twins, and they both receive neonatal care for the first six weeks after birth, but one twin continues to receive neonatal care for a further three weeks after the other is discharged, the employee will accrue a total of nine weeks' neonatal care leave. The maximum total neonatal care leave entitlement is still capped at 12 weeks.
When leave can be taken
Neonatal care leave may be taken within 68 weeks of a child's birth. This is to allow the leave to be taken after any maternity, paternity, adoption or shared parental leave. How the leave may be taken, and the notice requirements an employee must comply with in each case, will depend on the timing of the leave.
The Regulations distinguish between neonatal care leave that begins while an employee's child is receiving neonatal care, or within seven days of them ceasing to receive neonatal care (defined as the 'tier 1 period'), and neonatal care leave that begins more than seven days after the child has stopped receiving neonatal care (defined as the 'tier 2 period'). Where an employee begins their neonatal care leave during the tier 1 period, they may take it in continuous or non-continuous blocks of at least one week. Where they start a period of neonatal care leave during the tier 2 period, they must take their full (or remaining) entitlement as one continuous block.
Note that an employee who has accrued entitlement to neonatal care leave does not lose that entitlement in the event that their child dies, the adoption placement is disrupted, or the intended parents in a surrogacy case do not obtain a parental order.
Statutory neonatal care pay (SNCP)
Unlike neonatal care leave, the right to SNCP is not a day one right. Eligibility is restricted to employees who have at least 26 weeks' continuous service by the "relevant week", which will be the 15th week before the expected week of childbirth (in birth cases), or the week in which the adopter is notified of being matched with the child for adoption (in adoption cases). They must also earn at least the lower earnings limit (£125 per week from April 2025) for the eight weeks immediately before the relevant week, and must remain employed by the employer during the period from the end of the relevant week to the week in which the SNCP would be due.
The rate of SNCP is the same as other statutory family leave pay, i.e. the statutory rate (£187.18 per week from April 2025), or 90% of the employee's average weekly earnings, if lower. Employers are, of course, free to offer enhanced pay for neonatal care leave, above the statutory rate. Employers who do so will want to set out details of such enhancements in their neonatal care leave and pay policy.
Terms and conditions and right to return
During neonatal care leave, an employee's terms and conditions remain the same, except for pay and any obligations that would be inconsistent with the employee being absent on neonatal care leave.
When returning from neonatal care leave, the employee will usually be entitled to return to the same job. However, if they have taken neonatal care leave consecutively with more than four weeks' parental leave, or they have been absent on a combination of neonatal care leave and other statutory family-related leave (excluding parental leave) for more than 26 consecutive weeks, and it is not reasonably practicable for the employer to allow them to return to the same job, then they will be entitled to return to a suitable alternative job on no less favourable terms.
Legal protections
Employees will be protected from being subjected to a detriment because they took or sought to take neonatal care leave, and it will be automatically unfair to dismiss an employee (regardless of their length of service) if the reason, or principal reason, for their dismissal is connected with the fact that they took, or sought to take, neonatal care leave.
The right to priority for suitable alternative vacancies in a redundancy situation will apply to employees who are on neonatal care leave at the time the redundancy arises. The priority right will also apply to employees who have taken at least six consecutive weeks of neonatal care leave, where the redundancy arises within 18 months of the child's birth (in birth and surrogacy cases), placement for adoption (in adoption cases), or entry into Great Britain (in overseas adoption cases). As with employees who have taken other types of family-related leave that attract priority rights in a redundancy situation, employers will need to have a system for tracking which employees are entitled to this enhanced redundancy protection at any given time.
Next steps – preparing for implementation
Now that the Regulations have fleshed out the details of how neonatal care leave and pay will operate, employers should introduce a neonatal care leave and pay policy to set out how they will handle these rights within their organisation. When drafting their policy, employers may wish to consider whether they will offer any enhancements to support their employees, such as longer neonatal care leave, and/or enhanced pay above the statutory rate.
Employers should also consider providing training to line managers and HR on how to handle requests for neonatal care leave and pay in a sensitive and supportive manner, so that they are well prepared when the right takes effect in April.
We will be producing a policy to purchase, and have produced a client guidance note which provides more detail about the right to neonatal care leave and pay and steps that employers can take to prepare. If you would like a copy of our guidance note, or if you wish to discuss any aspect of neonatal care leave and pay further, please speak to your usual DACB contact.
