How can employers support employees who have premature babies?

A new statutory right to up to 12 weeks’ paid time off work for parents of children who have spent at least a week in neonatal care is being introduced by the Government via a Private Members’ Bill. This seems to be how Government is introducing all of their new legislation.

In July 2019 the Government published a consultation, Proposals to Support Families, a part of which canvassed the idea of introducing neonatal leave and pay. The 2020 budget saw confirmation that this would be going ahead and the Government has responded to the consultation. It was thought that this new entitlement would be included in an Employment Bill. However, the government has instead decided to support a Private Members’ Bill – the Neonatal Care (Leave and Pay) Bill. This is an enabling Bill which empowers the Secretary of State to make regulations so precise details are, as yet, unknown. There’s no timetable for implementation, but 2023 looks likely. (The House Commons Library has also published a useful research briefing on the Bill).

Currently, parents of a baby in neonatal care must rely on their existing statutory leave entitlements to enable them to be off work while the baby is in hospital. The consultation asked for views on the design of this new entitlement; associated practical considerations; and the implications for employers and employees. Specifically, it asked about eligibility and qualifying conditions, the length of entitlement and when the entitlement can be taken, notice and evidence requirements and employment protections and parents’ right to return to the same job.

The Government’s approach is as follows:

• Parents of babies who are admitted into hospital as a neonate (28 days old or less) will be eligible for neonatal leave and pay if the admission lasts for a continuous period of seven days or more – this is likely to be at the statutory rates for maternity.
• As to which care givers should be entitled to neonatal leave and pay, the Government intends consulting further before defining a ‘neonatal parent’.
• Neonatal leave will be available to an employee from the first day of employment.
• Entitlement to statutory neonatal pay will be available to those employees who have 26 weeks’ continuous service and earn more than the lower earnings limit.
• In the same way as maternity leave, employers will reclaim the statutory payment from the Government by reducing their National Insurance Contributions [NICs]. Large employers will be able to reclaim 92% whilst small employers (those who have paid £45,000 or less in gross NICs the preceding tax year) will be able to recover 103%.
• The total amount of statutory neonatal leave and pay available to parents will be capped at a maximum of 12 weeks.
• Neonatal leave will be taken after maternity/paternity leave through prescribing a set period in which neonatal leave and pay must be taken.
• Neonatal leave will normally be required to be taken in a continuous block of one or more weeks.
• The notice requirements haven’t been finalised, but the intention is to take a two-tiered approach: very short, informal, notice will be acceptable for neonatal leave taken very soon after the date of the neonate’s admission to hospital; a longer period of notice (one week) will be required where the neonatal leave begins at a stage where the child has not been recently admitted into neonatal care
• Parents who qualify for neonatal leave will be afforded the same employment rights and protections as parents taking other relevant family-related leave, i.e. protection from detriment or discrimination arising from them taking, or seeking to take, neonatal leave.

For the time being employers can show some flexibility in terms of additional paid or unpaid time off and also if a neonatal baby is in hospital for a significant period of the employee’s maternity leave then they may want to discuss alternative arrangements, such as the mother continuing to work (once the two-week compulsory maternity leave has passed) in return for a longer period of maternity leave when the baby comes home from hospital or unpaid leave at the end of maternity leave.

Is a maternity leave policy enough?

A maternity leave policy is a good starting point, but an employer should consider all possibilities (many policies already talk about the very difficult situation when a baby dies but few talk about babies in hospital for significant periods) and build in flexibility – it is important that all employees are treated consistently in situations like this.

What do some employers offer that goes over and above standard provision?

If your employer has private health cover/helplines or counselling services check to see if this will cover support for parents of neonatal babies. Employers can also consider extending maternity leave to enable parents to take more time with the baby when they are out of hospital and flexible working for the partners to enable them to visit the baby in hospital.

*Beverley Sunderland is Managing Director of Crossland Employment Solicitors.

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