Explanatory Note

(This note is not part of the Regulations)

These Regulations exercise powers in Part 8 of the Employment Rights Act 1996 (c. 18) (“the Act”). Parts 1 – 4 exercise powers in Chapter 5, which was inserted by the Neonatal Care (Leave and Pay) Act 2023 (c. 20) to provide a new entitlement to neonatal care leave for employees with responsibility for children receiving neonatal care in that Part.

Part 1 is introductory and includes provision for application of, and definitions used in, the regulations.

Part 2 (regulations 4 to 12) sets out conditions for entitlement to neonatal care leave. Regulation 4 defines neonatal care and regulation 5 contains provisions as to entitlement for different categories of parent. Regulation 6 refers to what happens in cases of death, disruption or a parental order not proceeding as set out in the Schedule.

Regulation 7 deals with the time and period in which neonatal care leave can be taken.

Regulation 8 provides for options for taking neonatal care leave in the tier 1 and tier 2 periods. While a child is in neonatal care and for one week after they are discharged (the tier 1 period), leave can be taken in non-continuous blocks of a minimum of one week. During the remainder of the 68 week period the leave can be taken in one continuous block (the tier 2 period).

Regulation 9 contains modifications for cases where more than one child born as a result of the same pregnancy receives neonatal care.

Regulation 10 sets out provisions for giving notice to take neonatal care leave. This includes what evidence must be provided and when notice can be dispensed with.

Regulation 11 sets out when leave can begin including in urgent cases and regulation 12 deals with situations where leave is interrupted by other statutory leave.

Part 3 (regulations 13 to 19) makes provision for conditions relating to the employee’s employment whilst on neonatal leave. Regulation 13 elaborates on the new section 80EG of the Act and provides that the employee remains entitled to the same terms and conditions of employment during their absence on leave, apart from the right to remuneration. Regulation 14 provides for extended redundancy protection rights to employees who have taken 6 continuous weeks of neonatal care leave so that their protection can apply for the period of their leave and for a period of time after the leave has ended. Regulations 15 and 16 provide for a right to return to work after taking a period of neonatal care leave, distinguishing the case where the leave was an isolated period of absence from the case where it followed another period of statutory leave. Regulations 17 and 18 provide protection to the employee from detriment and dismissal by reason of taking or seeking to take neonatal care leave.

Part 4 (regulation 20) contains provisions applicable where an employee has a contractual right to neonatal care leave, in addition to the statutory right contained within these Regulations.

Part 5 (regulations 21 and 22). These Regulations also amend the Maternity and Parental Leave etc. Regulations 1999 (S.I. 1999/3312), and the Paternity, Adoption and Shared Parental Leave (Parental Order Cases) Regulations 2014 ( S.I. 2014/3096). These amendments, contained in Part 5, should have been made by the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 (S.I. 2024/264), and were not included in that S.I. in error. Those 2024 Regulations made provision to extend existing requirements that apply to employers when redundancy situations arise where an employee is on maternity, adoption or shared parental leave, so that those requirements can also apply during pregnancy and for a period of time after that leave has ended. The amendment made by this S.I. to the Maternity and Parental Leave Regulations 1999 removes a cross reference in regulation 20 of the 1999 Regulations that is no longer needed; and the amendment to the Paternity, Adoption and Shared Parental Leave (Parental Order Cases) Regulations 2014 amends references to adoption placement, to the birth of the child. The 2014 Regulations apply, with modifications, paternity and shared parental leave legislation to ‘parental order parents’ (those who have applied or intend to apply for a parental order under the Human Fertilisation and Embryology Act 2008) (c. 22). As explained above those taking neonatal care leave will have equivalent protection from redundancy pursuant to regulation 16 of these Regulations.

The Schedule contains provisions modifying the regulations in various cases where the child dies, an adoption placement is disrupted or a parental order does not proceed.

These Regulations are part of a package of legislative measures to implement the Neonatal Care (Leave and Pay) Act 2023. A full impact assessment of the effect that Act will have on the costs of business, the voluntary sector and the public sector was published on 23 January 2023 and is available from the Department for Business and Trade, Old Admiralty Building, London, SW1A 2PA.