Part 3TAKING NEONATAL CARE LEAVE

Application of terms and conditions during neonatal care leave

13.—(1) An employee who takes neonatal care leave is, during any period of leave—

(a)entitled to the benefit of all of the terms and conditions of employment which would have applied if the employee had not been absent on leave; and

(b)bound by any obligations arising under those terms and conditions, subject only to the exception in section 80EG(1)(b) of the Act(1).

(2) For the purposes of section 80EG of the Act, only sums payable to an employee by way of wages or salary are to be treated as remuneration.

(3) In the case of accrual of rights under an employment-related benefit scheme within the meaning given by paragraph 7 of Schedule 5 to the Social Security Act 1989(2), nothing in paragraph (1)(a) imposes a requirement which exceeds the requirements of paragraph 5E of that Schedule.

Redundancy during neonatal care leave

14.—(1) This regulation applies where it is not practicable by reason of redundancy for an employer to continue to employ an employee under the existing contract of employment during—

(a)a period in which the employee is taking neonatal care leave; or

(b)where the employee is not on neonatal care leave, the additional protected period.

(2) For the purposes of paragraph (1)(b) the additional protected period—

(a)begins with the day after the employee has taken six consecutive weeks of neonatal care leave;

(b)continues during any period of continuous employment that includes the neonatal care leave referred to in sub-paragraph (a); and

(c)ends immediately before the relevant day.

(3) The relevant day referred to in paragraph (2)(c) is the day after a period of 18 months beginning with the day on which the child—

(a)was born, where the entitlement to neonatal care leave arises under regulation 5(2) (birth and surrogacy) of these Regulations;

(b)was placed for adoption, where the entitlement to neonatal care leave arises under regulation 5(3) (adoption and prospective adoption) of these Regulations; or

(c)entered Great Britain, where the entitlement to neonatal care leave arises under regulation 5(4) (adoption from overseas) of these Regulations.

(4) Where there is a suitable alternative vacancy, the employee is entitled to be offered (before the end of the employee's employment under the contract of employment) alternative employment with the employer, the employer's successor, or an associated employer, under a new contract of employment which complies with paragraph (5) and takes effect immediately on the ending of the employee's employment under the previous contract.

(5) The new contract of employment must be such that—

(a)the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for the employee to do in the circumstances, and

(b)its provisions as to the capacity and place in which the employee is to be employed, and as to the other terms and conditions of the employee's employment, are not substantially less favourable to the employee than if the employee had continued to be employed under the previous contract.

(6) This regulation does not apply where either of the following regulations applies—

(a)regulation 10 of the Maternity and Parental Leave etc. Regulations 1999(3); or

(b)regulation 23 of the Paternity and Adoption Leave Regulations 2002(4).

Right to return after neonatal care leave

15.—(1) An employee who returns to work after a period of neonatal care leave which was—

(a)an isolated period of neonatal care leave, or

(b)the last of two or more consecutive periods of statutory leave which did not include any period of—

(i)parental leave of more than four weeks; or

(ii)statutory leave which when added to any other periods of statutory leave (excluding parental leave) taken in relation to the same child as the period of neonatal care leave the employee is returning from means that the total amount of statutory leave taken in relation to that child is more than 26 weeks,

is entitled to return to the job in which the employee was employed before the absence.

(2) An employee who returns to work after any period of neonatal care leave not falling within paragraph (1)(a) or (b) is entitled to return from leave to the job in which they were employed before the absence, or, if it is not reasonably practicable for the employer to permit the employee to return to that job, to another job which is both suitable and appropriate for the employee to do in the circumstances.

(3) In this regulation—

(a)the job in which the employee was employed before the absence means the job in which the employee was employed—

(i)if the return is from an isolated period of neonatal care leave, immediately before that period;

(ii)if the return is from consecutive periods of statutory leave, immediately before the first such period.

(b)“parental leave” means leave under regulation 13(1) of the Maternity and Parental Leave etc. Regulations 1999(5).

Right to return from neonatal care leave: supplementary

16.—(1) The right to return under regulation 15 is a right to return—

(a)with the employee’s seniority, pension and similar rights as they would have been if the employee had not been absent, and

(b)on terms and conditions not less favourable than those which would have applied if the employee had not been absent.

(2) In the case of accrual of rights under an employment-related benefit scheme within the meaning given by paragraph 7 of Schedule 5 to the Social Security Act 1989, nothing in paragraph (1)(a) above imposes a requirement which exceeds the requirements of paragraphs 5A to 6 of that Schedule(6).

Protection from detriment

17.—(1) An employee is entitled under section 47C of the Act not to be subjected to any detriment by any act, or any deliberate failure to act, by an employer because—

(a)the employee took, sought to take, or made use of the benefits of, neonatal care leave, or

(b)the employer believed that the employee was likely to take neonatal care leave.

(2) For the purposes of paragraph (1)(a) an employee makes use of the benefits of neonatal care leave if, during the period of neonatal care leave, the employee benefits from any of the terms and conditions of employment preserved by regulation 13 during that period.

(3) Paragraph (1) does not apply where the detriment in question amounts to a dismissal within the meaning of Part 10 of the Act.

Unfair dismissal

18.—(1) An employee who is dismissed is entitled under Section 99 of the Act to be regarded for the purposes of Part 10 of that Act as unfairly dismissed if the reason or principal reason for the dismissal is of a kind specified in paragraph (3).

(2) An employee who is dismissed is also to be regarded for the purposes of Part 10 of the Act as unfairly dismissed if—

(a)the reason or principal reason for the dismissal is that the employee was redundant,

(b)it is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who had positions similar to that held by the employee and who have not been dismissed by the employer, and

(c)it is shown that the reason or principal reason for which the employee was selected for dismissal was a reason of a kind specified in paragraph (3).

(3) The reasons referred to in paragraphs (1) and (2) are reasons connected with any of the following facts—

(a)that the employee took, sought to take or made use of the benefits of, neonatal care leave,

(b)that the employer believed that the employee was likely to take neonatal care leave.

(4) For the purposes of paragraph (3)(a) an employee makes use of the benefits of neonatal care leave if, during a period of neonatal care leave, the employee benefits from any of the terms and conditions of employment preserved by regulation 13 during that period.

Calculation of a weeks pay for the purposes of Chapter 2 Part 14 of the Act

19.  Where—

(a)under Chapter 2 of Part 14 of the Act, the amount of a week's pay of an employee falls to be calculated by reference to the average rate of remuneration, or the average amount of remuneration, payable to the employee in respect of a period of 12 weeks ending on a particular date (referred to as the “calculation date”),

(b)during a week in that period, the employee was absent from work on neonatal care leave, and

(c)remuneration is payable to the employee in respect of that week under their contract of employment, but the amount payable is less than the amount that would be payable if he or she were working,

that week must be disregarded for the purpose of the calculation and account must be taken of remuneration in earlier weeks so as to bring up to 12 the number of weeks of which account is taken.