Employment Law Family Rights Part 2: Neonatal Care and Paternity Leave Changes

In this second blog on the developments in family-related rights, we explore the introduction of the Paternity Leave (Amendment) Regulations 2024 and the Neonatal Care (Leave and Pay) Act 2023 and their impact on employers and their employees.

You can read the first blog in this series here.

Paternity Leave

By law, an employer must pay statutory paternity pay to an employee or worker if they’re eligible for it. Employees taking time off to look after a child are eligible for paternity leave if they are one of the following:

• the father;
• the husband or partner of the mother (or adopter) – this includes same-sex partners;
• the child’s adopter; or
• the intended parent (if you’re having a baby through a surrogacy arrangement).

To qualify for paternity leave you must:

• be an employee;
• give the correct notice; and
• have been continuously employed by your employer for at least 26 weeks up to any day in the ‘qualifying week’. The ‘qualifying week’ is the 15th week before the baby is due. This is different if you adopt.

To qualify for paternity pay you must:

• be employed by your employer up to the date of birth;
• earn at least £123 a week (before tax);
• give the correct notice; and
• have been continuously employed by your employer for at least 26 weeks up to any day in the ‘qualifying week’.

You can still get paternity leave or pay if your baby is stillborn from 24 weeks of pregnancy or born alive at any point during the pregnancy.

Statutory paternity pay is either of the following, whichever is lowest:

• £172.48 a week rising to £185.03; or
• 90% of their average weekly earnings.

Currently, statutory paternity leave and pay is for up to two weeks. The employer starts paying it on the date agreed with the employee or worker. An employer may also offer ‘enhanced’ or ‘contractual’ paternity pay.

Presently, eligible fathers and partners are required to take their statutory paternity leave within eight weeks of the baby’s birth and employees intending to claim paternity leave and pay, must give employers at least 15 weeks’ notice of their intentions and at the same time specify their leave start date.

As of 6 April 2024, paternity leave will be changing to reflect a shifting attitude towards work-life balance and gender equality. Regulations have been introduced to modify how paternity leave can be taken for prospective fathers and partners. The Regulations will have effect in respect of children whose expected week of birth begins after 6 April 2024 and in cases of adoption, where the expected date of placement, or expected date of entry into Great Britain, is on or after 6 April 2024.

Under the Paternity Leave (Amendment) Regulations 2024:

• The upper limit for paternity leave remains at two weeks; however, the father or partner will be able to take their leave and pay (if they qualify) as two non-consecutive blocks of one week if they so desire, rather than as a single uninterrupted block of at least one week or two weeks.

• Fathers and partners will be permitted to take statutory paternity leave at any time within the first 52 weeks of birth (or placement for adoption) instead of in the first 8 weeks of birth.

• Fathers and partners will be required to give notice of their entitlement to paternity leave and pay 15 weeks before the birth (or placement), in a similar vein to the previous previsions. However, for actual notice of the paternity leave start date, they will only need to give 28 days’ notice before the date that they intend to take each period of leave and pay.

These changes are intended to provide greater flexibility in response to changing family circumstances. The regulations came into force from the 8 March 2024, leaving employers with not much time to update their paternity leave policies to ensure that they are compliant before the regulations begin to apply on 6 April 2024.

However, campaigners have suggested the paternity leave entitlement is still not enough, and many fathers and partners cannot afford to take their full two week entitlement owing to financial concerns. A survey from parenting charity Pregnant Then Screwed, found that 60% of fathers took two weeks’ or less paternity leave following the birth of their most recent child. The campaigners call for statutory paternity leave to be increased to six weeks and paid at 90% of the fathers or partners salary. This would align with European countries such as Sweden, Spain, Norway and the Netherlands who offer at least six weeks paid paternity leave for fathers and partners.

Neonatal Care

The Neonatal Care (Leave and Pay) Act 2023 received Royal Assent on 24 May 2023 and will come into force in April 2025. Currently, parents are required to use holiday or a form of parental leave to look after a baby who requires neonatal care, but this new legislation will give parents the right to take neonatal care leave and receive neonatal care pay. The intention is to support employees with a parental or other personal relationship with a baby who is receiving neonatal care.

The regulations will set out exactly how this new right will work but we are expected to see the following entitlements.

• The new law will allow parents to take up to 12 weeks of leave, in addition to their existing leave entitlements, if their baby receives neonatal care that has lasted for at least seven consecutive days and started within 28 days of birth.
• The right to neonatal care leave is a day one right requiring no set length of service, mirroring the right to maternity leave.
• The leave is to be used within 68 weeks of the birth.
• The right to receive statutory neonatal care pay requires 26 weeks of service and earnings.
• Payment is expected to be at the statutory prescribed rate or 90% of the employee’s average weekly earnings, whichever is lower. The exact level of pay and rules around the duration of the pay will be set out in the regulations, when enacted.

It is currently unclear what notice and evidence will be required for an employee to exercise this right. Employers will reclaim the statutory payment from the Government by reducing their 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%.

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.

Employers must take into account that the Act currently stipulates the possibility of including regulations for providing alternative employment in case of redundancy during any neonatal leave period. Although we await the final regulations, it’s probable that priority protection is likely to be brought in given the priority status granted to those on maternity/adoption/shared parental leave, soon to be extended to pregnant employees and maternity returners (see Part 1 of our Family Rights blog series).

While the overarching aim of the Act is to extend the overall leave duration for those with babies who have had neonatal care, employees will typically take neonatal leave after exhausting their other parental leave entitlements. This means that employers may encounter instances where eligible employees opt to shorten their maternity leave once statutory maternity pay ends at 39 weeks, transitioning to neonatal leave and statutory neonatal care pay for 12 weeks. This could potentially allow for nearly a full year of paid leave, albeit at statutory rates for employers who do not offer enhancements.

Should you have any queries in relation to the developments and their potential effect on your business and/or employment rights, or indeed any other employment law related query, please contact Linky Trott or any other member of our Employment Team.

 

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