Law Change – the Neonatal Care (Leave and Pay) Act 2023

In a significant step forward for parents’ rights, a new statutory entitlement to neonatal care leave and pay will be introduced from 6 April 2025. This groundbreaking legislation recognises the unique challenges faced by parents whose newborns require extended hospital care immediately after birth.

What is the new right to neo-natal leave?

The Neonatal Care (Leave and Pay) Act 2023 establishes a crucial support system for working parents during what can be an incredibly stressful time. Under this new legislation, eligible employees will be entitled to up to 12 weeks of leave when their newborn requires neonatal care for seven or more consecutive days within the first 28 days of life.  The new right is a day 1 right.

What is neonatal leave?

Neonatal leave is clearly defined in the legislation as:

• medical received in hospital;
• medical care received in any other place which meets the following criteria;
  • the child was an inpatient in hospital and the care is received upon that child leaving 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; and
• palliative or end of life care (this would of course be followed by an entitlement to Paid Parental Bereavement Leave)

The neonatal care must start within 28 days of the day following birth and lasts for 7 consecutive days.

Who is entitled to Neonatal Leave?

In order to be eligible staff must meet the following conditions:

• You must be an employee
• The baby must be born on or after 6 April 2025
• At the birth of the baby, you must be the baby’s parents, intended parents (in relation to surrogacy) or partner (see definition below) to the baby’s mother and you must have or expect to have responsibility for raising the child (similar rules apply in relation to adoption).
• The newborn must be admitted to neonatal care within the first 28 days of birth and must remain in neonatal care for at least 7 continuous days. The first period of 7 days begins with the day after the day your baby first receives neonatal care.
• Neonatal care leave must be taken to provide care for the baby
• Neonatal care leave must be taken in blocks of a week.

A Partner is defined as a person who lives with the baby’s mother or adopter and is in an enduring family relationship with them but is not a relative (parent, grandparent, grandchild, sibling, aunt, uncle, niece or nephew.

Is Neonatal Leave paid?

Yes providing the following criteria are met:

• You must have been employed by your employer for a continuous period of at least 26 weeks ending with the relevant week (which is the 15th week before the week in which the baby is due (approximately the 25th week of pregnancy). For babies born before the relevant week, please see the Q& A below.
• Your average gross weekly earnings must be at least equal to the lower earnings limit for National Insurance (NI) purposes. In April 2024-25, this is £123 per week.
• As a general rule, your earnings will be averaged over a period of at least 8 weeks up to and including the last pay day before the end of the relevant week. This period is called the ‘relevant period’.

Neo-natal leave is paid at the same rate as Maternity Leave.

How much leave are employees entitled to?

Parents can take one week’s Neonatal Care Leave in respect of each interrupted week (7 days) that their baby receives neonatal care with a maximum 12 weeks. The first qualifying period of 7 days begins with the day after the day your baby first receives neonatal care (days 2-8 of neonatal care). Neonatal care Leave can be taken from the day after the first qualifying period. This means that you are not able to start neonatal leave until day nine.

Leave must be used within 68 weeks of the baby’s birth, placement or adoption.  As many people will already be on some form of family leave while their baby is in neonatal care, Neonatal Leave will often be taken after neonatal care has ended and at the end of maternity/shared parental or adoption leave.

However, there will be instances where individuals will take neonatal leave at the same time as their baby is receiving neonatal care, this would generally be partners whose paternity leave entitlement has run out or those using Shared Parental Leave.

There are two types of neonatal leave depending on when the leave is taken, Tier 1 and 2 periods.

Tier 1 period leave applies to leave taken while your baby is still receiving care and up to a week post discharge. Tier 1 leave can be taken in non-continuous blocks of a minimum of one week at a time. The Tier 1 period leave ends on the 7th day after the day your baby stops receiving neonatal care.

Tier 2 period leave applies to all other leave and must be taken in one continuous block, there is no option to take more than one period of Neonatal Care Leave in the tier 2 period.

Do employees have to give notice to take Neonatal Care Leave and Pay?

The notice required changes depending on when the leave is taken.

For each week of Tier 1 period leave (leave to be taken while your baby is still receiving care), notice must be given before you are due to start work on your first day of absence in that week unless it is not reasonably practicable in which case you must give as much notice as soon as it is reasonably practicable. Notice during a Tier 1 period does not need to be in writing.

Tier 1 period leave is only likely to be taken by a father or the mother’s partner, as the mother will more than likely already be on Maternity leave during the Tier 1 period. If an employee is already on paternity leave when they want to take Tier 1 leave, the employee would just have to notify the employer before they are due to start work after pate.

For a single week of Tier 2 period leave, notice must be given no later than 15 days before the first day of the Neonatal Care Leave.

For two or more consecutive weeks of Tier 2 Leave, notice must be given no later than 28 days before the first day of the neonatal care leave to which the notice relates. The leave can only be taken in a single block.

However, employers can agree to waive their right to notice.

How do I give notice to take Neonatal Care Leave and Neonatal Care Pay?

In order to take Neonatal Care Leave and Neonatal Care Pay, employees must provide notice stating:

• Their name;
• Their baby’s date of birth (or date of placement/entry to Great Britain if adopting);
• The start date or dates of neonatal care;
• The date neonatal care ended (if applicable);

The date on which they would like to take the leave (and pay);

• The number of weeks of Neonatal Care Leave (and pay) the notice is being given for;
• Confirmation that the leave is being taken to care for the baby;
• Confirmation that they are eligible to take the leave due to your relationship with the baby.

What are an employee’s rights when on Neonatal Care Leave?

As with all statutory family leave, when on Neonatal Care Leave, employees will continue to benefit from the terms and conditions of employment, except pay. This includes continuity of employment and the accrual of statutory holiday.  Likewise, employees remain bound by their contractual obligations such as confidentiality.  

Of course, should employees suffer a detriment during neonatal care leave they could bring a claim. Moreover, if you dismiss an employee for talking neonatal care leave they could bring a claim for an automatically unfair dismissal.

Must an employee return to the same job after a period of Neonatal Care Leave?

An employee will be entitled to return to teh same job in the following circumstances:

• If  they return to work after an isolated period of neonatal care leave;
• If they return to work after the last of two or more consecutive periods of statutory leave which did not include more than 4 weeks of parental leave or which did not total more than 26 weeks (excluding parental leave) of statutory leave. 

In all other cases employees are entitled to return to the same job or, if that is not reasonably practicable another job which is both suitable and appropriate for you. This is the same right as those returning from Additional Maternity Leave. 

The Government are introducing a wide range of changes, this is just the start of what they are planning to do. Employment Law Solutions offer Employment Law advice and can assist with your contracts and handbooks. By offering a monthly retainer service you are able to benefit from legal advice and employment contract reviews 24/7, 365 days, all while spreading the cost over 12 monthly payments.