Part 2ENTITLEMENT TO NEONATAL CARE LEAVE

Definition of neonatal care

4.—(1) The prescribed kinds of care within the meaning of “neonatal care” for the purposes of section 80EF of the Act are—

(a)medical care received in a hospital,

(b)medical care received in any other place which meets the following criteria—

(i)the child was an inpatient in hospital and the care is received upon that child leaving hospital;

(ii)the care is under the direction of a consultant; and

(iii)the care includes ongoing monitoring by, and visits to the child from, healthcare professionals arranged by the hospital referred to in paragraph (b)(i); and

(c)palliative or end of life care.

(2) For the purposes of section 80EF(5) of the Act and these Regulations, neonatal care is to be treated as being received continuously without interruption throughout any period spent being transported from one place where neonatal care is received to another place where neonatal care is received.

(3) In this regulation—

“consultant” means a registered medical practitioner who—

“hospital” means—

including clinics and out patient departments maintained in connection with any such institution or home.

Entitlement to neonatal care leave

5.—(1) An employee is entitled to be absent from work to take neonatal care leave for one week in respect of each qualifying period that C has spent in neonatal care if that employee—

(a)satisfies the condition specified in one of paragraphs (2), (3) or (4) and the condition in paragraph (5), and

(b)complies with the notice requirements in regulation 10.

(2) At the date of birth—

(a)the employee is—

(i)C’s parent, or

(ii)an intended parent of C, or

(iii)the partner of C’s mother, and

(b)the employee has or expects to have—

(i)if they are C’s parent or intended parent, responsibility for the upbringing of C;

(ii)if they are the partner of C’s mother, the main responsibility (apart from any responsibility of the mother) for the upbringing of C.

(3) At the date C is placed—

(a)the employee is—

(i)C’s adopter, or

(ii)C’s prospective adopter, or

(iii)the partner of C’s adopter, or

(iv)the partner of C’s prospective adopter, and

(b)the employee has or expects to have—

(i)if they are C’s adopter or prospective adopter, responsibility for the upbringing of C;

(ii)if they are the partner of C’s adopter or prospective adopter, the main responsibility (apart from any responsibility of their partner) for the upbringing of C.

(4) At the date C enters Great Britain—

(a)the employee is—

(i)an overseas adopter; or

(ii)the partner of an overseas adopter; and

(b)the employee has or expects to have—

(i)if they are C’s overseas adopter, responsibility for the upbringing of C;

(ii)if they are the partner of C’s overseas adopter, the main responsibility (apart from any responsibility of their partner) for the upbringing of C.

(5) They are taking the leave to care for C.

Entitlement to neonatal care leave in special circumstances

6.—(1) Paragraph 1 of the Schedule applies to an employee who is C’s parent or the partner of C’s mother where C dies before the end of the period in which neonatal care leave can be taken.

(2) Paragraph 2 of the Schedule applies to an employee who is C’s adopter, prospective adopter or the partner of C’s adopter or prospective adopter where before the end of the period in which neonatal care leave can be taken—

(a)C dies; or

(b)C is returned after having been placed for adoption.

(3) Paragraph 3 of the Schedule applies to an employee who is C’s overseas adopter or their partner where before the end of the period in which neonatal care leave can be taken—

(a)C dies; or

(b)C ceases to live with the overseas adopter.

(4) Paragraph 4 of the Schedule applies to an employee who is the intended parent of C where before the end of the period during which neonatal care leave can be taken C dies, or the parental order does not proceed because—

(a)the intended parent does not apply for a parental order for C within the time limit in section 54(3) or 54A(2) of the Human Fertilisation and Embryology Act 2008(6) for making such an application; or

(b)the application is refused, withdrawn or otherwise terminated without the order being granted and any time limit for an appeal or new application has expired.

(5) Paragraph 6 of the Schedule applies to an employee who is C’s parent or the partner of C’s mother where before the end of the period during which neonatal care leave can be taken the parental order does not proceed because—

(a)the intended parent does not apply for a parental order for C within the time limit in section 54(3) or 54A(2) of the Human Fertilisation and Embryology Act 2008 for making such an application; or

(b)the application is refused, withdrawn or otherwise terminated without the order being granted and any time limit for an appeal or new application has expired.

Extent of entitlement

7.—(1) The maximum number of weeks in respect of which a person is entitled to take neonatal care leave is twelve weeks.

(2) The leave must be taken before the end of 68 weeks beginning with the date of C’s birth.

(3) For an employee falling within regulation 5(3), entitlement only arises in respect of a qualifying period falling after the date that C has been placed.

(4) For an employee falling within regulation 5(4), entitlement only arises in respect of a qualifying period falling after the date C has entered Great Britain.

Options in respect of neonatal care leave

8.—(1) Where an employee takes neonatal care leave in the tier 1 period—

(a)the leave may not be taken before the day after the first qualifying period;

(b)the leave may be taken in non-consecutive weeks.

(2) Any neonatal care leave the employee does not choose to take in the tier 1 period—

(a)may be taken in the tier 2 period;

(b)must be taken consecutively.

More than one child in receipt of neonatal care

9.  In a case where a person meets the conditions in regulation 5(2), (3) or (4) in respect of more than one child born as a result of the same pregnancy—

(a)references to “C” receiving neonatal care in the definition of “qualifying period” in regulation 3 (interpretation) are a reference to the same child being in receipt of neonatal care in that period;

(b)for the definition of “Tier 1 period” in regulation 3 there is substituted—

““Tier 1 period” means the period beginning with the first day that one or more of the children born as a result of the pregnancy starts receiving neonatal care and ending with the 7th day after the day that the last of the children to receive neonatal care stops receiving it;”;

(c)subject to paragraph (d), entitlement to neonatal care leave may be accrued in respect of more than one child;

(d)for any period where more than one child is in receipt of neonatal care at the same time, entitlement can only be accrued in that period in respect of one child;

(e)the maximum number of weeks in respect of which the person is entitled to neonatal care leave remains unchanged where more than one child is receiving neonatal care.

(f)the 68 week period in which an employee may take their leave begins with the date on which the first child is born.

Notice requirements for neonatal care leave

10.—(1) An employee must give their employer notice of their intention to take any absence from work as neonatal care leave specifying—

(a)the name of the person giving notice to take neonatal care leave;

(b)C’s date of birth and where relevant—

(i)in cases of adoption, the date C is placed, or

(ii)in cases of overseas adoption, the date C enters Great Britain;

(c)the date that C started to receive neonatal care or, if the notice covers each date that C started to receive neonatal care such dates that C started to receive neonatal care on;

(d)if C is no longer receiving neonatal care, the date the neonatal care ended;

(e)the date on which the employee chooses the period of absence to begin;

(f)the number of weeks of neonatal care leave the notice is being given for;

(g)that the employee is taking the leave to care for C; and

(h)if it is the first time notice is given in respect of C, confirmation that the person claiming the statutory neonatal care leave meets the condition specified in regulations 5(2), (3) or (4).

(2) Where a person has given notice to their employer before C has stopped receiving neonatal care, the person must inform their employer of the date that the neonatal care ends, as soon as is reasonably practicable after that date.

(3) Where C starts to receive neonatal care again after the employee has notified their employer that neonatal care has ended, the employee must inform their employer of the date that the neonatal care started again and the date when it ends, as soon as reasonably practicable after each date.

(4) Where an employee intends to be absent in the tier 1 period, notice must be given in respect of each week of such leave—

(a)before the employee is due to start work on the employee’s first day of absence from work in that week, or

(b)in a case where it is not reasonably practicable for the employee to give notice in accordance with sub-paragraph (a), as soon as reasonably practicable.

(5) Where an employee intends to be absent in the tier 2 period, the employee must give the notice in writing in accordance with sub paragraph (a) or (b)—

(a)for a single week of neonatal care leave, notice must be given no later than 15 days before the first day of the neonatal care leave to which the notice relates;

(b)for two or more consecutive weeks of neonatal care leave, notice must be given no later than 28 days before the first day of the neonatal care leave to which the notice relates.

(6) An employee who has given notice to take leave in the tier 2 period in accordance with paragraph (5) (“the original notice”) may withdraw the original notice in writing in accordance with sub paragraph (a) or (b)—

(a)where the original notice was given in relation to a single week beginning in the tier 2 period, a notice of withdrawal must be given no later than 15 days before the first day of the week to which the original notice relates;

(b)where the original notice was given in relation to two or more consecutive weeks beginning in the tier 2 period, a notice of withdrawal must be given no later than 28 days before the first day of the first week to which the original notice relates.

(7) Notwithstanding the provisions in paragraphs (1) to (6) of this regulation the employee and employer can mutually agree to waive the requirement to give notice and in such cases the employee will be treated as having given notice in accordance with this regulation.

Commencement of neonatal care leave

11.—(1) Except in the cases referred to in sub-paragraph (2) or (3), an employee’s period of neonatal care leave begins on the date specified in the notice under regulation 10(1)(e).

(2) In a case where—

(a)the employee notifies their employer of their intention to begin neonatal care leave on the same day as notice is given to their employer in accordance with regulation 10(4), and

(b)they are already at work on that day,

the employee’s period of neonatal care leave begins on the day after that day.

(3) In a case where the employee and employer mutually agree to waive the requirement to give notice in accordance with regulation 10(7), the employee’s period of neonatal care leave begins on a day mutually agreed with the employer.

Leave which interrupts a period of neonatal care leave

12.—(1) This regulation applies when an employee has commenced a period of neonatal care leave and, before that period is due to end, the employee begins another period of statutory leave.

(2) Where neonatal care leave taken in the tier 1 period is interrupted by another period of statutory leave, the neonatal care leave ends immediately before the start of the other period of statutory leave and either—

(a)the remaining entitlement to neonatal care leave must be taken immediately after the end of the other period of statutory leave, provided the leave is still being taken in the tier 1 period; or

(b)where, following the other statutory leave, the employee is now in the tier 2 period, the remaining entitlement to neonatal care leave must be taken consecutively with any other neonatal care leave taken in the tier 2 period.

(3) An employee is not entitled to take leave in the tier 2 period where, at the time of giving notice, the employee knows that the leave will be interrupted by another statutory leave period.

(4) There is no requirement to give an additional notice for taking neonatal care leave in respect of any remaining entitlement following an interruption.