HR briefing - neonatal leave, carer’s leave and protection from redundancy

20 July 2023

As our regular readers will know, Parliament has recently enacted legislation introducing new rights to neonatal leave, carer’s leave and protection from redundancy in connection with some forms of family leave.

Matthew Ramsey and Louise Pereira discuss:

  • recently enacted legislation introducing new rights to neonatal leave, carer’s leave and protection from redundancy in connection with some forms of family leave; and
  • how these new rights could impact individuals from a personal perspective.


Matthew: Hello, and welcome to the July edition of the Macfarlanes HR Podcast. I'm Matthew Ramsey, I'm the senior knowledge lawyer in the employment team, and I'm joined this month by my colleague and roommate, Louise Pereira. Louise, how are you?

Louise: I'm very well, thank you. How are you?

Matthew: I'm very well, thank you. And what we're going to talk about this month are three family friendly rights that have recently been passed by Parliament in three separate acts, and which introduced three new protective rights for different aspects of family friendly relationships, neonatal leave, carers leave, and enhance protection from redundancy. So Lou, let's start with neonatal leave, and I know this is a topic very close to your heart.

Louise: Yes, as you say, is, is indeed close to my heart. And I think that's a good one to start with. I'd say that this is more of the headliner of the three acts which are coming into place. It's been picked up the most by the press, and the social media sites, which is actually where I first heard about it. So as you mentioned, this topic is close to my heart. The reason for this is my daughter, who was born early last year, she spent the first six weeks of her life in NICU, and then HDU, all the lingo here for you. But NICU, for those that aren't familiar with it is neonatal intensive care unit, and HDU is high dependency unit. There's a third category of neonatal care, which is typically called SCBU, and that's the special care unit. So yeah, I know all the nursing and doctor lingo from my time in those units. Had this happened in a few years time, my husband and I would have benefited from this leave which is coming into place, so this neonatal leave. Just to give you a snapshot of what it is, it entitles parents to up to an additional 12 weeks paid leave if their new-born is receiving neonatal care. And so as I said, If this had been in place, when we were in NICU, we would have benefited from additional time off. Instead, in my case, those six weeks, which were spent in the hospital environment did count towards part of my maternity leave. I wondered if it's helpful just to provide a little bit more context as to kind of the environment of NICU and high dependency units for babies just to kind of better understand why a lot of charities, back benches, were campaigning for this type of extra leave and pay. So it'd be helpful to give you a bit of context as to as to what it's like I guess day in day out in those units. For our experience, for example, you never really get any time alone with your child, you share a ward with a number of other babies, and parents, you build up really strong relationships with those parents around you. But ultimately, it's not the same as taking your baby home and having that special time with them as a as a family. There is constant beeping, lots of noise going on, lots of babies crying, and they're not your own, usually. So it's a really, really intense environment. On top of that, you've obviously got the stress of your child being treated in that environment and having medical conditions ongoing, etc. And so as you can imagine, it's not the same, really as spending that time in the usual sense of maternity leave. And so what this new act is meant to do is kind of give those parents and additional time with their child when they are at home and outside of that environment, which is great to hear. And it will be something which yeah, I keep telling people about especially people that I've met in NICU. So yeah, that's a bit of a snapshot as to as to why this has been brought into place, it's going to, I think, have a greater impact on fathers. So it's going to benefit both mothers and fathers or birthing partners, which is brilliant. And it's interesting. So if you think about it, Matthew, as you know, fathers are currently only entitled to two weeks paternity leave. That's unless the employer grants an enhanced right. But typically, in most cases, it's just two weeks off. So in that scenario, you the father or birthing partner would be due to be back at work while their baby is still in intensive care with their partner, etc. And so that would be a incredibly stressful situation to be in having to choose between, or having to kind of juggle the two commitments, so yeah, I do think this is going to have quite a big impact on the fathers in this case.

Matthew: Yeah, that's a very that's a very fair point, isn't it Lou because, as you say, paternity leave is limited to two weeks, which has to be taken really effectively right at the start of the child's life. And so this additional, and I would say it is an additional right, to the existing paternity and maternity framework of 12 weeks and paid in the same way that statutory paternity pay and statutory maternity pay are paid. That is potentially quite a valuable right to new parents.

Louise: Yeah, definitely. And it's one which Harry, my husband, would have really benefited from, given that his company is a smaller type of business. And they, you know, they can't really afford to offer more than the statutory minimum to their employees, unfortunately. And so it did mean that technically two weeks in when we were still in intensive care, he was back at work. Luckily, they were very generous and very flexible. But really, we didn't have anything to fall back on in terms of statutory protection.

Matthew: And so how does it fit with maternity leave, then? Is it that this has to go first, or second, or can it go in the middle of mat leave?

Louise: It has to go, yes, good question, because it's one to get your head around slightly, because obviously, this is something that to qualify, you have to be a NICU for the early part of your child's life. So technically, you might think it would come first. But actually, it comes after maternity leave, and it can't go in the middle of maternity leave, for the reason that you can't stop and start that right. You're either on maternity leave, or you're back at work. And so what this will do is it will come into force, as I say, at the end of your maternity leave. And I think that's something that we'll have to watch this space on in terms of how people will use this. So as we've mentioned, it will be a paid 12 weeks leave. So we might see mothers ending their maternity leave once the statutory maternity pay and then starting the NICU leave for that reason that you'd get the 12 weeks pay. So yeah, we'd have to watch and see how people end up using it.

Matthew: Interesting. And you said that some of the detail hadn't yet been published? Is there a date further likely introduction of this new, right?

Louise: Yes, that's right. So there's no exact date as yet, but as this is a paid leave, it's expected to take longer to put into place than the other two rights that we'll be talking about. It's not expected to be in place before April 2025. So a few years away yet. And actually, as you say, there are a few details still to be clarified, once we have that detailed legislation in place. But just to recap, a few points which are clear from the Act, which we have, at the moment, are that neonatal care itself, so when this will apply, is if your baby is receiving a medical or palliative kind of care, which will be specified in the regulations. So we'll need more detail on exactly what care will count. But as I've mentioned, I expect the NICU environments, the high dependency environments and the special care to be covered. The other point, which we do know is that the care must start within the first 28 days from birth. So as you've mentioned, it is to cover new-borns really or near enough to be new-born, for them to qualify for their leave. And also, the care itself must continue for a consecutive seven days. So it's meant to capture those which are in there, you know, for those type of longer periods, rather than here or there. And probably goes back to the kind of the reason for the care being that it's really a disruptive time in the maternity leave or other leave. They are planning on allowing the legislators to provide for different scenarios. So for example, there might be special circumstances where twins or triplets and there is more than one child, the legislators will be able to draft for what will happen in those scenarios i.e. whether there's more time granted. Also, there's expected to be some flexibility about interrupted periods of care. So for example, if you were discharged from NICU and then end up in there again a few weeks later, which is really not uncommon, and it's something that we saw quite often when we were in there, they're going to be able to draft around that so we'll have to watch this space as to how that's dealt with in the legislation itself.

Matthew: Thanks very much, Lou. So let's look at carers leave which I think I'm right in saying is an unpaid right so ought to be slightly faster to introduce?

Louise: Yes, that's right. So this is, as you say, an unpaid right to time off. Due to it being unpaid, it's likely to be put in place sooner than the neonatal leave and pay, although it's expected not to be any sooner than April next year. When this is embedded into legislation, it will grant eligible employees to up to five days off in any 12 month period, and this is to be used for caring responsibilities for their dependents with long term care needs. So this is something which a number of carer charities have been campaigning for, for a number of years. It's intended really to relieve unpaid carers, most of which are thought to be women in the UK, really of some of the pressure in using annual leave and sick leave, or, you know, otherwise disrupting their work time for care or caring for their dependents. So as with the neonatal act, we don't have the full details and we won't do until the detailed legislation is in place, but what I can do is just run through the main points that we do know at this point. So this is going to cover care responsibilities for a dependent. The definitions throughout are broader than existing care of related rights. So I'll just talk you through what is captured by "dependent" in this in this act. So it will be a partner, child or parent of the employee, or someone living in the same household other than a lodger, or tenant, etc. Or someone who reasonably relies on the employee to provide or arrange their care. So as mentioned, it's broader, for instance it will capture grandparents who do not live with the employee, for example. That dependent then must have a long term care need. So that's, again, I think that's quite a broad definition that they've used here. So that can include an illness or injury, requiring care for more than three months, which is a shorter period than we've seen before, in terms of, for example, the Disability Act. And that's actually the second part of what can count as long term care need, it can be someone who has a disability under the Equality Act. And it will also cover someone who requires care due to their old age. So again, as mentioned, we do think it's a wider definition really than we've seen before. And also actually it's worth mentioning that unlike existing rights for time off for dependents, this will allow the employees to take days off here and there. So they do not have to take a block of five days off at a time as with existing rights, it's flexible, and they can take days here and there, I think it's expected to also be able to allow them to even take half days. So using my scenario, if I may, just as an example, I guess. So my daughter does have a long term care need, which involves a number of hospital appointments during the year. And therefore when this comes into place, I expect I might be able to take advantage of it, I think, because I can take that unpaid time off to attend her appointments, etc. So yeah, on the whole, it's not the headliner, it's unpaid, but it is fairly broad and flexible. And, you know, it's a welcome relief to unpaid carers.

Matthew: And as you say, it's the first time looking away from care of children that the government has seen fit to legislate for other types of caring relationships, particularly looking after older relatives.

Louise: Exactly, yes. And even when you look at the definition of dependents, it's, it's obviously got in mind, elderly grandparents, etc. But it's got that third limb under the definition of dependent being someone that they reasonably rely on the employee to provide or arrange care. So you know, I think they are thinking of those types of scenarios there, and they are looking outside of just children of the employees.

Matthew: Interesting. And then the last one isn't really a right to time off in the same way, but it's still a potentially valuable, protective, right. And that's in relation to redundancy situations. How does that one work?

Louise: Yes, that's right. So this third right, which is coming into place, again, expected to be around next year. This is actually extending an existing protection just to a wider category of employees. So I think it's helpful just to recap what the current protection is and who it applies to. So currently employees on maternity adoption or shared parental leave are provided with a priority right to be offered any suitable vacancies in redundancy situations. And this is where any such vacancies are available. So ultimately, they have an automatic right to any suitable alternative role, which may exist versus any employee who's not on that type of leave. And so it's favourable treatment, basically, for those people. At the moment, however, that priority right only exists while the employee is on the maternity leave, or shared parental leave, etc. And it disappears once they are back at work. So this legislation is intended to extend that priority status to a wider range of employees and for a longer duration. So the employees this will capture will also include pregnant employees. And so it obviously would capture this scenario earlier on rather than when they are on maternity leave. And then also it is expected to capture and protect those returning from maternity leave, adoption leave, or shared parental leave.

Matthew: How long does that last on their return? It can't presumably last forever.

Louise: It can't last forever, but it's a good question. But it's not one that we know the answer to as yet. We're waiting for more regulations on it. So that is to be confirmed. It's predicted to be around six months, it's thought to be around six months protection. So that would be after someone returned, I mean, you can see the logic of it. So otherwise, you're protected during maternity leave, or during your period of shared parental leave, but then you return to work, and that protection or the priority status, I should say, disappears on the first day that you're back.

Matthew: You can see some quite difficult scenarios arising in practice once this new right becomes fully embedded. So let's say, for instance, that you've got somebody returning from maternity leave, and somebody else coming back from shared parental leave both in the same team, with only one slot available. It's hard to know quite how the government intends employers to deal with that balancing act, you know. Which of the two protected employees gets preference? Perhaps that will come out in the in the detailed legislation to follow.

Louise: Definitely, the other thing is, we talked about it before, but whether somebody that has taken a really short period of shared parental leave, will be entitled to this protection? And if so, how long will they be protected for? It's been mentioned in the consultation papers, but it's obviously not intended to protect someone for six months, if they've only had one week of shared parental leave, etc. So I think there'll be some thought behind that and some more detail.

Matthew: Very interesting. So we will, I suspect, return to these subjects once the detailed secondary legislation is put through Parliament. So just to backtrack for one second. So these are all primary pieces of legislation. So they're all acts of parliament, they've all had royal assent and gone through the House of Lords, the House of Commons in their normal way. But all of them are effectively framework acts, which require secondary legislation, Statutory Instruments and the jargon, to give the full detail of how these schemes will work in practice on a sort of day-to-day basis. And I guess the other interesting thing for kind of policy wonks is that all three of these rights were introduced into parliament by backbench MPs as Private Member's bills, and the government having committed, now for four or five years, to each of these rights, but never having brought forward the legislation, found itself able to piggyback effectively and support these private member's bills, as they went through parliament, so it's a very unorthodox way of Government going about enacting its business. So there were employment bills expected, but not appearing both in 2019 and 2021/22. And so it's an it's an interestingly reactive way of going about legislating.

Louise: The one that I was most familiar with was the neonatal leave and pay, and I know that because a friend of mine worked for Bliss, the charity which act for premature and sick babies, and they've been campaigning for this leave and pay right to come into force for years and years. So I imagine they were behind, like you were saying, those earlier dates when they thought the legislation would come in. So yeah, it's interesting to see that's how this has come about. So yeah, I didn't appreciate how unusual it was for legislation to come forward this way, but it's yeah, it's interesting.

Matthew: And I'm sure women and men in you and Harry's position hopefully will breathe a sigh of relief and be able to enjoy more time with their little people in a slightly more stress-free way.

Louise: Albeit it's not coming into force for a while is it, but we should watch this space. Good to know it's coming.

Matthew: It is good to know it's coming, and it's good to hear about it with a personal perspective. Thanks Lou for telling us about it and for sharing your own experience. I'm very pleased to note that Lily is a happy and healthy, bouncing little creature.

Louise: She is, she took her first few steps this weekend. So there you go.

Matthew: There we go. Momentous, no doubt your camera has exploded under the weight of photography.

Louise: Exactly, I have no storage left at all. But yeah, and as you say, when the more detailed legislation comes into place, happy to talk through it again, and maybe just about how it will affect our clients and the employers from that perspective.

Matthew: Great. Let's pencil that in in the future. If you have any questions about any of these new aspects of employment law, or frankly, anything about employment law generally, you're very welcome to get in touch with Louise who knows everything, not just about neonatal leave, but about everything generally. Her details and mine are in the links in the podcast. And if you like this, please share it with your friends and tell them to subscribe too. We will reconvene in the next edition. It just remains for me to say thank you very much for listening.