Introduced by the Conservative government, The Neonatal Care (Leave and Pay) Act 2023 ("the Act") enjoyed cross party support during its passage through Parliament and the Labour government has recently confirmed that it will, subject to Parliamentary approval, come into force on 6 April. By that time nearly two years will have passed since it received Royal Assent (became law).
When the Act came into force in 2023 it was indicated that a number of statutory instruments would be needed to give the Act full effect. That process was started on 17 January 2025 with The Neonatal Care (Leave and Pay) Act 2023 (Commencement No. 2) Regulations 2025 bringing into force outstanding parts of the Act. That was followed on 20 January 2025 by both The Neonatal Care Leave and Miscellaneous Amendments Regulations 2025 ("the Leave Regulations") and The Statutory Neonatal Care Pay (General) Regulations 2025 ("the Pay Regulations") being laid before Parliament in draft. Both draft Regulations require Parliamentary approval.
Purpose
This new right will apply to employees who have a parental or other personal relationship with a child (including adoptive and via surrogacy) who is receiving, or has received, neonatal care. The Act is intended to provide eligible employees with a right to up to twelve weeks' leave. This is paid if additional eligibility requirements are met.
Eligibility
Only those with the status of "employee" will be entitled to neonatal leave and pay, which is consistent with other parental leave rights. Although the right to the leave is a Day 1 right, the right to paid leave requires 26 weeks of service and the employee must earn above the lower earnings limit. This mirrors the right to maternity leave and pay. Biological parents, adopters and those using surrogacy arrangements are all eligible and both parents may take the leave.
How will it work?
Eligible employees will be able to take the leave if their baby requires seven (or more) days of continuous neonatal care starting within the first 28 days following their birth. Neonatal care is defined in both sets of draft Regulations as medical care received in a hospital, or any other place meeting specified criteria, and palliative or end of life care. A parent will be entitled to one week's leave for every week their child spends in neonatal care, capped at a maximum of twelve weeks. The leave may be taken while the child is receiving the care or after any other parental leave that the parent may be eligible for. The leave must be taken within a period of 68 weeks from the birth or placement for adoption.
The Pay Regulations provide for neonatal care pay to be paid to employees meeting the eligibility requirements at the lower of either the statutory flat rate (£187.18 for 2025/26) or 90% of average earnings calculated over a set reference period.
Practicalities
Although further Regulations will be made to provide for the administration of statutory neonatal care pay, the Leave Regulations have set out further detail of a number of important aspects of how the right to leave will work. This includes confirmation that: -
- A two-tiered approach for notice requirements has been adopted for both leave and pay, depending on whether the leave is taken beginning with the day the child starts receiving neonatal care, or later on during the 68-week period within which the leave must be taken.
- If the leave is to start beginning with the day the child starts receiving the care (Tier 1) it must be given before the employee is due to start work, on the employee's first day of absence or if that is not possible then as soon as reasonably practicable. Notice for a statutory pay week beginning in the Tier 1 period 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.
- If the leave is to be taken later (Tier 2) then for a single week it must be given no later than 15 days before the first day of leave to which the notice relates, and if it is for two or more consecutive weeks then notice must be given no later than 28 days before the first day of the leave to which the notice relates. The notice provisions for pay for Tier 2 leave, mirror these requirements.
- Both draft Regulations set out evidential requirements to the leave and pay that must be provided in writing. These include the name of the person claiming the leave or pay, the date of birth/placement or entry to Great Britain of the child, and a variety of information around the receipt of the neonatal care, but no separate medical evidence is required.
Employee protections
Eligible employees taking advantage of the leave will have the same protections as those associated with other forms of family related leave. This includes: (1) protection from dismissal or detriment as a result of taking, or seeking to take, the leave; (2) rules on the right to return to work; and (3) enhanced protection from redundancy during neonatal leave and, where the employee has taken six consecutive weeks of neonatal care leave, an additional protected period of 18 months from the date of birth or date of placement for adoption or, for adoption from overseas, the date the child entered Great Britain.
What should employers be doing?
Now that the draft Regulations have been published, employers should be considering either amending existing related family friendly policies or introducing a specific neonatal care leave and pay policy. Making managers aware of the impending right and the need for sensitively handling a situation where a request is made is essential. Once policies are finalised staff involved in managing requests should be trained appropriately and employees made aware of the right.
