Parents will now receive the right to neonatal care leave from ‘day one’ of their employment under new regulations. 

Currently, there is no specific statutory right to leave or pay for parents if their baby requires specialist neonatal care after birth. This means that many parents are having to return to work while their babies remain unwell in hospital. Parents in this situation might find themselves having to use existing rights to family-related leave and pay (e.g. maternity / adoption/ paternity leave or unpaid parental leave/ compassionate leave) to care for their baby.

In practice, this has led to unfair results in what is already a difficult time. For instance, if a baby was born two months early, new mothers would typically have to use their maternity leave entitlement, with no ability to claim this time back. This would mean that the overall period of time they had to enjoy with their baby, when released from hospital, was reduced. 

Following the recent publication of new draft government regulations, thousands of employees with babies in neonatal care will be entitled to additional time off (and, if eligible, pay) in these circumstances. The new rights are expected to benefit approximately 60,000 new parents. Whilst the regulations remain in draft form, subject to parliamentary approval, we expect that they will be approved.

Neonatal Care Leave (NCL) Entitlement

Employed parents will be able to take up to 12 weeks’ paid leave from their job if their babies are admitted into neonatal care (at a time when they are up to 28 days old) and who have a continuous stay in hospital of seven full days or longer. Neonatal care includes care received in other settings (e.g. outpatient departments or clinics where the care is under the direction of a consultant) and extends to palliative or end of life care. 

Notably, parents can take the leave when their child is still receiving neonatal care or after any other leave that the parent may be eligible for e.g. after maternity or adoption leave. However, leave cannot be taken during the first week that a child is in neonatal care. The leave must also be taken within 68 weeks of birth. For example, if a woman is already taking maternity leave when their child is receiving neonatal care, they can take the NCL at the end of their maternity leave. In practice this means that NCL is likely only to be taken when the child is receiving neonatal care by the child's father or mother's partner.

These new rights will be effective in respect of children born on, or after, 6 April 2025.

The Pay Entitlement

The new pay entitlement will provide a measure of earnings replacement aimed at supporting parents when taking time off work to care for their baby. 

Like other types of paid family leave, eligible parents will be entitled to a statutory payment which is paid at either (i) the weekly statutory flat rate of £187.18 per week for 2025/2026, or (ii) 90% of average earnings calculated over a set reference period, whichever is lower.  

Unlike NCL which is a ‘day one’ right, Neonatal Care Pay (NCP) is only available to eligible employed parents who have 26 weeks’ continuous service. There are detailed provisions surrounding the calculation of the period of continuous employment in the draft regulations. 

Rights during and after leave

As with other forms of family leave, the employee will continue to benefit from their terms and conditions of employment during any period of NCL (except for those terms relating to remuneration). They will also benefit from protection from detrimental treatment and dismissal because they exercised, or sought to exercise, their right to take NCL. 

There are rules around when an employee has a right to return to their original role following a period of NCL and, akin to shared parental leave, if an employee takes a period of six continuous weeks leave or more, they qualify for enhanced redundancy protection. Employers will need to factor this into any redundancy process.

Comment  

The new regulations send a strong message to both employees and employers about the importance and value of recognising neonatal care and providing appropriate support for parents in such circumstances. The new regime requires employers to be proactive by familiarising themselves with the new statutory scheme and introduce a new policy in the limited time available before the regulations come into effect. This is likely to be particularly onerous given the complexity of the notification requirements surrounding when NCL can be taken. If employers currently provide a contractual entitlement to neonatal leave, the employee will be able to take advantage of whichever scheme is more favourable. 

How we can help

Our expert employment law team at Burness Paull can help you to prepare your organisation for the new rules including reviewing your current policies and procedures. Please get in contact with Kerry Norval or your usual Burness Paull contact. We’d be happy to help.

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