Neonatal Leave and Pay (and not via an Employment Bill)

In 2019, the Conservative Party Manifesto stated that it would ‘legislate to allow parents to take extended leave for neonatal care’.? In December of that year, the Queen’s Speech stated that an Employment Bill would be introduced?which would include a provision ‘allowing parents to take extended leave for neonatal care’.

However, an Employment Bill has never materialised.? This is despite reference to such a Bill in the UK Government’s March 2020 Good Work Plan: Proposals to Support Families’. ?‘Good Work’ is reference to the Matthew Taylor report of July 2017.? Whilst this 2017 report did not mention parental rights for workers, the 2018 Responses document made pledges to ‘promote other rights’.

Do note that when talking about employment rights, this is a devolved matter for Northern Ireland.? Therefore, ‘Good Work’ has to be considered separately for Great Britain and Northern Ireland and their different employment law jurisdictions.? The same applies below when talking about the employment right to take neonatal leave.

A Private Member’s Bill (PMB) is, simply, where a Member of Parliament (MP) proposes legislation either under:

1. The Ten-Minute Rule – where MPs get the opportunity to talk on an issue for 10 minutes, often on a subject or aspect of existing law rather than an attempt to get new legislation in place
2. Presentation – this is where MPs present their own legislation without the opportunity to speak on it
3. The ‘Ballot’ – where numbers are drawn representing each MP with the top 7 getting an opportunity for a full days’ debate of their legislation

On 19 May 2022, Stuart C McDonald (Scottish National Party) came top of the ballot draw for the 2022/2023 Parliamentary session.? On 15 June 2022, he introduced The Neonatal Care (Leave and Pay) Bill.? On 15 July 2022, the UK Government issued a news story giving it’s backing to this PMB.?

Although there is no indication of an implementation date, the provision for making legislation is not a swift one.? Plus, there are the important considerations that employers, HMRC and software developers will need to make changes to systems, policies and procedures.?

We are not looking at 2023, though we should consider the Bill’s provisions.? Note that it is the all-important secondary Regulations that will determine many aspects, not least the definition of neonatal care which the Bill describes as ‘care of a medical or palliative kind’:

?The Employment Rights Act 1996 (in Great Britain) will create a new statutory leave entitlement for neonatal care.? Therefore, if contracts of employment are not written under the 1996 Act, for example, employees in Northern Ireland, there will be no entitlement to leave.

• It will be a day 1 right, unconditional with regards level of pay or service
• Regulations will detail the employee relationship, described only as ‘parental or other personal relationship’
• Regulations will also detail notification and record-keeping requirements
• The statutory right to take leave will apply to those with a prescribed ‘parental or other’ relationship where babies are receiving neonatal care up to the age of 28 days.? For entitlement to one week’s leave, the child must receive continuous care for 7 days or more
• In addition to other leave entitlements, the maximum entitlement is 12 weeks which must be taken within 68 weeks of the child’s birth.?
• Regulations will clarify when Statutory Neonatal Leave will cause, for example, the loss of entitlement to Statutory Maternity Leave.? As Maternity Leave cannot be restarted once it is stopped / broken, it appears as though Neonatal Leave is added to the end of any other leave entitlement
• As with other statutory leave entitlements, Regulations will detail that the employee will have employment protections such as the right to return to a job and suffering unfair treatment

I queried this when I first saw the Bill.? 68 weeks is unlike any other entitlement that exists at the moment. ?However, it is calculated as follows:

• 4 weeks (the 28 days) +
• 52 weeks child-related leave (adoption and maternity) +
• 12 weeks Neonatal Leave

The child-related leave entitlement for paternity is less than maternity and primary adopters.? Often, paternity leave for ‘fathers’ and secondary adopters is taken by men.??Yet, note that, for the purposes of equality, the 68-week time limit will apply to men as well as women.

Most importantly, as with any statutory payment, the employee must be entitled to Statutory Neonatal Care Leave to be entitled to Statutory Neonatal Care Pay.? So, we are looking at an employee with a ‘parental or other’ relationship and a child in receipt of medical or palliative care, as long as the child was first in receipt up to the age of 28 days.

Currently, I am not aware of any initialisms that could be used for care leave and pay, though, given that The Neonatal Care (Leave and Pay) Bill comes via a Private Member’s Bill proposed by a Scottish Nationalist Party MP, SNP might be appropriate.

Here are the details regarding entitlement to pay, always remembering we have to have the necessary Regulations after the Bill to make it work in practice.? Simply, unlike leave, eligibility for pay is conditional and this follows the eligibility rules we are already familiar with:??

• The employee must have been employed for 26 weeks and
• Earnings must be at or above the Lower Earnings Limit (LEL) for National Insurance

As with leave, it is Regulations that will prescribe notice periods and record-keeping requirements and the amount of reclaim, i.e. 92% as for SMP.? The same Regulations will say that pay must be taken within 68 weeks of the child’s birth.

So, even without an Employment Bill, Neonatal Leave and Pay will become a reality to employers in Great Britain.

The primary legislation will be known as the Neonatal Care (Leave and Pay) Act 2022 when it has completed its Parliamentary passage. ??Yet, it is the associated Regulations that will be important.? An Act says it can happen; Regulations detail how it happens.

I think that 2023 can be ruled out for sure.? We are probably looking at 18 months after the Bill receives Royal Assent, so this is the event worth looking out for.

Back to Private Member’s Bills.

Given that the top 7 Ballot Bills have the best chance of actually making it into legislation, it is, perhaps worthwhile looking at the others:

• (No 2) Dan Jarvis - Protection from Redundancy (Pregnancy and Family Leave) Bill 2022/23
• (No 3) Greg Smith - Equipment Theft (Prevention) Bill 2022/23
• (No 4) Mark Hendrick - Co-operatives, Mutuals and Friendly Societies Bill 2022/23
• (No 5) Dr Liam Fox - Electricity and Gas Transmission (Compensation) Bill 2022/23
• (No 6) Bob Blackman - Supported Housing (Regulatory Oversight) Bill 2022/23
• (No 7) Greg Clark - Protection from Sex-based Harassment in Public Bill 2022/23

Of these, only the Ballot Bill from Labour’s Dan Jarvis seems to impact the payroll and reward profession. ?It aims to make provision for protection from redundancy during or after pregnancy or after periods of maternity, adoption or shared parental leave.? There are no details of the contents of this Bill which has its second reading in September 2022.