New right for parent with babies in neonatal care to statutory leave and pay

Background

According to the charity Bliss, around 1 in 7 babies born in the UK are admitted to a neonatal care unit each year, (with twins and multiples having a much higher chance of being born prematurely).

The duration of a baby’s stay in neonatal care varies greatly, and whilst the average length of stay in a neonatal care unit is seven days; some of the sickest and most premature babies can spend months in hospital. For example, the average length of stay in hospital for a baby born between 28 to 31 weeks gestation is 44 days. As such, many parents of premature babies end up using much of their statutory leave entitlement (e.g. maternity leave) before their babies are able to go home.

To address this, the Neonatal Care (Leave and Pay) Act 2023 was enacted and comes into force on 6^th April 2025, but this was largely an enabling act and required regulations to set out the detail of the new rights. Those regulations have now been published in draft form and are subject to parliamentary approval.  The government expect the new right to benefit around 60,000 new parents.

Summary of change

From 6 April 2025, it will become a day one right for employed parents of babies (born after 6 April 2025) who are admitted into neonatal care, to take up to 12 weeks leave; and eligible parents will be entitled to statutory pay for such leave.

The right to statutory neonatal care leave (SNCL) and statutory neonatal care pay (SNCP) is in addition to the right to other family leave and pay (i.e. maternity, adoption, shared parental leave and paternity). The intention is that a period of SNCL is added onto the end of the other family leave (e.g. added on to the end of a period of maternity leave in order to avoid bring maternity leave to an end). Depending on how long the baby is in neonatal care, this could result in a mother receiving up to a maximum of 51 weeks’ pay (39 weeks SMP and 12 weeks SNCP).

The Regulations (Statutory Neonatal Care Pay (General) Regulations 2025 and the Neonatal Care Leave and Miscellaneous Amendments Regulations 2025) are due to come into force from 6^th April 2025, which give effect to the Neonatal Care (Leave and Pay) Act 2023), are complex, but in summary provide as follows:

Eligibility:

• The right to SNCL and SNCP applies to employees only.
• There is no qualifying period of service for SNCL, it is a day one right (however there is a qualified period of service to be eligible for SNCP – see further below).
• The right applies to parents (as defined in the regulations) whose babies are admitted to neonatal care (as defined in the regulations) within the first 28 days of birth and who require neonatal care continuously for a period of at least seven continuous days.

Period of leave

• Parents are entitled to one week of SNCL in respect of each week the baby spends in neonatal care.
• The maximum amount of SNCL being 12 weeks (this is irrespective on the number of babies, e.g. if there are twins born, parents are only entitled to a maximum of 12 weeks, not 12 weeks per baby).
• SNCL must be taken within 68 weeks of the baby being born.
• The intention is that SNCL will be taken after maternity/paternity leave through prescribing a set period in which SNCL must be taken. The regulations take a two-tiered approach and refer to Tier 1 and Tier 2 periods, which distinguishes between when a period of leave is taken.
  • Tier 1 is defined as the period beginning with the day the baby starts receiving neonatal care and ends seven days after the baby stops receiving care. SNCL in Tier 1 period can be taken in non-continuous blocks of a minimum of one week. Tier 1 leave is likely to be taken by the child’s father or mother’s partner as the mother is likely to be on maternity leave during this period.
  • Tier 2 is defined as any period of time which is not a Tier 1, but where an employee is entitled to SNCL. During Tier 2, SNCL must be taken consecutively in one continuous period.

Notice

• There are also specific notice requirements the employee must provide the employer.
• The notice requirement also differs depending on the time SNCL is taken. Recognising that a baby’s admission into neonatal care can be sudden and unexpected, a shorter notice is required for Tier 1 leave, such being before the employee is due to start work on the first day of absence or as soon as reasonably practicable (there being no requirement for the notice to be in writing).
• A longer notice is required for Tier 2 leave, and notice must be in writing. An employee is required to give 15 days’ notice, where a single week of SNCL is taken. For two of more consecutive weeks of SNCL, an employee must give 28 days’ notice.
• However, the employer and employee can mutually agree to waive the notice requirements.

Pay

• Eligible employees will also be entitled to statutory neonatal care pay (SNCP), provided the employee has been continuously employed for 26 weeks and have normal weekly earnings that are not less than the lower earnings limit, currently £123 a week. This mirrors the entitlement to statutory maternity pay.

Protections

• Parents who qualify for SNCL will be afforded the same employment rights and protections as parents taking other similar family-related leave.
• Employees during SNCL remain entitled to the benefit of all of the terms and conditions of employment that would have applied had they not been absent, with the exception of pay.
• Employees who take SNCL are entitled to return to the role they were employed in before taking a period of leave, where the period of leave was either an isolated period of SNCL or the last of two of more consecutive periods of statutory leave which did not include any periods of parental leave of more than four weeks or statutory leave which, when added to any other periods of statutory leave (excluding parental leave) taken in relation to the same child means that the total amount of statutory leave taken in relation to that child is more than 26 weeks.
• Where an employee returns to work after any other period of SNCL, they are entitled to return from leave to the job in which they were employed before their absence or if it is not reasonably practicable for the employer to permit the employee to return to the same job, they are entitled to return to another job which is both suitable and appropriate for the employee to do in the circumstances (on terms which are no less favourable).
• Where employees have taken six continuous weeks of SNCL (and they are not already protected by similar provisions in the Maternity and Parental Leave Regulations) they also benefit from the extended redundancy protection rights; namely to be offered suitable alternative vacancy for up to 18 months from the baby’s birth.
• Employees are also protected from detriment because they took or sought to take SNCL.
• An employee will be regarded as unfairly dismissed if the reason, or principal reason, for the dismissal is connected with the fact that the employee took, or sought to take SNCL. As this is a day one right, there is no qualifying period of employment required before being able to pursue a claim for automatic unfair dismissal.

Action points

Employers should consider creating or updating their family friendly policies to include a neonatal care leave policy. Some employers may wish to offer discretionary enhanced rights, in which case it is important that this is clearly set out in a policy.

This is only intended to be a summary and not specific legal advice. The regulations are complex, should you require assistance in drafting your neonatal care leave policy, please contact a member of our team.