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FUTURE LAW SERIES Q&A – Q&A on UK Government Consultation on Proposed Neonatal Leave & Pay

July 25, 2019

The UK Government has launched a new consultation¹ which sets out proposals to support the parents of children who require neonatal care following birth. The consultation explores the design of potential new statutory rights to Neonatal Leave and Pay, the associated practical considerations and seeks responses from employers and employees on the practical implications.

In this FUTURE LAW SERIES Q&A we share our views on the new consultation, and we share practical tips on what employers can do so support their staff, which we hope will further the debate on this important subject.

Background

An estimated 100,000 babies are admitted to neonatal care every year following their birth. Bliss (the charity for premature and sick babies) estimates that of the 60,000 babies a year who are born prematurely (before 37 weeks’ gestation), around two thirds require neonatal care; and a further 60,000 babies who are born full-term (at 37 or more weeks’ gestation) are admitted each year to neonatal intensive care. The consultation cites an academic study which puts this figure into context that this represents around 10% of the annual birth rate of full-term babies².

The consultation explains that multiple births (twins, triplets, etc.) are more likely to be premature – at around 50% of multiples are born before 37 weeks’ gestation, and the proportion of multiples that spend time in neonatal care because of complications following birth is even higher at 60%, and the time in neonatal care ranges from days to months.

What is neonatal care?

Neonatal means ‘new born’ and neonatal units specialise in the care of babies born early, with low weight or who have a medical condition that requires specialised treatment.

What are the levels of neonatal care?

There are four levels of care:

  1. Intensive care – provided for babies who have the most complex problems, who are very premature (those born before 28 weeks’ gestation) and/or have an extremely low birth weight (birth weight less than 1,500 grams).
  2. High dependency care – provided for babies with less serious problems but who still need continuous monitoring and support and for those who are recovering from a critical illness.
  3. Special care – provided for babies who may need to have their breathing and heart rate monitored, be fed through a tube, supplied with extra oxygen or treated for jaundice.
  4. Transitional care – is provided for babies who need some medical observation or treatment but who are well enough to be cared for at their mother’s bedside in a postnatal ward.
What rights to UK employees currently have?

Putting aside maternity and paternity leave, all employees in the UK have the right take a reasonable amount of time off work to deal with emergencies involving family and other dependants. It is worth remembering that employees with 26 weeks’ service have a statutory right to request flexible working. In the neonatal context, flexible working is often informally agreed with line managers or the HR team.

Evidence gathered as part of the governmental review suggests that current leave and pay entitlements do not adequately support parents where the baby, or babies, need to spend a prolonged period in neonatal care.

What is the UK government proposing?

Parents of a baby or babies in neonatal care rely on their statutory leave entitlements to enable them to be off work whilst the baby is in hospital. This means that for mothers, a proportion of their 52 weeks of Maternity Leave is spent with the baby in hospital; and for fathers and partners, typically their whole two weeks of Paternity Leave is spent with the mother and baby in hospital.

The consultation highlights that where the baby has been in neonatal care for a prolonged period, fathers and partners often rely on annual leave entitlements or unpaid leave in order to be with the mother and baby in hospital after their statutory Paternity Leave has elapsed.

The proposed Neonatal leave would be an entitlement to be absent from work to care for the baby, so that, as far as possible, parents have additional time at home with their child to compensate for the time their child was in hospital after birth.

How many weeks of Neonatal Leave would be available?

The government propose that parents receive one week of Neonatal Leave and Pay for every week that their baby is in neonatal care, up to a maximum number [currently undefined] of weeks.

The government invites views on whether there should be different caps on the maximum numbers of weeks of leave and pay, such that the latter weeks of Neonatal Leave would be unpaid.

How long does the baby have to be in neonatal care for parents to qualify?

The proposal is that this would apply to parents of babies who had spent a minimum of two continuous weeks in neonatal care immediately after birth.

Philip Henson Head of Employment at ebl miller rosenfalck says that: This may seem like a long period of time for the baby to be neonatal care in order to qualify, and it is.

The consultation itself cites that the majority (54%) of babies admitted to neonatal care spend one week or less in hospital before being discharged home, and a smaller proportion (19%) of babies spend between one and two weeks.  So, the proposed new law, in its current form, and using the statistics from the consultation is offering support to 27% of those parents whose children are admitted into neonatal care.

Careful thought needs to be given to the needs of parents whose babies are discharged and then have to return to neonatal wards to receive further care.

Why is the threshold so high?

The UK government considers that the higher threshold could enable Neonatal Leave and Pay to target parents who are most in need – those with the most seriously ill children or likely to spend an extended period of time in neonatal care.

Which individuals should be eligible for Neonatal Leave and Pay?

In determining who should be eligible for Neonatal Leave and Pay, the government considers that it should be restricted to the individuals who would have had the main responsibility for caring for the child, had the child not been admitted to neonatal care. This means that the following groups of parents would potentially be eligible for Neonatal Leave and Pay:

  • The mother of the baby or babies;
  • The father of the baby or babies;
  • The mother’s spouse; civil partner or a partner who will be living with the mother and baby that is in neonatal care in an enduring family relationship;
  • The intended parents in a surrogacy arrangement (where they are eligible for and intend to apply for a Parental Order);
  • The intended parents in cases of adoption, where the intention was that the baby or babies would be placed with the individuals that they have been matched with at birth or shortly after birth.
Would Neonatal leave be a day-one right?

Yes. The internal review highlighted that parents can face particular challenges where fathers and partners of babies in neonatal care do not qualify for Statutory Paternity Leave because they do not have the necessary 26 weeks’ continuous employment with their employer.

The government proposes that employed parents whose baby spends a prolonged period in neonatal care from birth have a day-one right to Neonatal Leave, i.e. employed parents would be eligible for the leave irrespective of the length of service with their employer, so could qualify for Neonatal Leave even if they do not qualify for Paternity Leave.

Or maybe not. However, the consultation goes on to set out contradictory criteria – in the section which sets out how payments will be calculated (referred to below) – regarding setting qualifying weeks of continuous service.

When would this new leave be taken?

For fathers and partners who would otherwise only have a maximum of two weeks’ Paternity Leave, plus any other leave entitlements, Neonatal Leave and Pay would facilitate this parent to be absent from work in order to be with their baby or babies whilst they are in neonatal care. Where the father or partner is eligible for Paternity Leave, the intention is that Neonatal Leave and Pay would be taken at the end of the father’s Paternity Leave.

For mothers, Neonatal Leave and Pay would enable an additional period of time to be spent caring for the baby at home at the end of her Maternity Leave, which will replace the time that would have been spent doing this following birth, but for the fact the baby was in hospital.

What would be the impact on Shared Parental Leave?

This does not seem to have been considered in detail by the UK government as the consultation states that: “We are considering how this would interact with Shared Parental Leave and Pay”.

How will the level of Neonatal Pay be set?

The consultation explains the desire that, as far as practicable, Neonatal Pay should mirror existing family-related statutory payments, such as Statutory Paternity Pay and Statutory Shared Parental Pay. This would mean that, in order to qualify for Neonatal Pay parents must have:

  • Average earnings over a prescribed reference period above the Lower Earnings Limit and be continuously employed by the employer who is liable to pay them Neonatal Pay up until the baby’s birth; and
  • Have at least 26 weeks’ continuous service with their employer at the 15th week before the baby is due.
Who will pay for the new Statutory Neonatal Pay?

Statutory Neonatal Pay would be paid by the parent’s employer. The employer will then be able to reclaim a proportion of it from HM Revenue & Customs. Neonatal Pay would be paid at the statutory flat rate (currently £148.68 for the year 2019/20) or 90% of average weekly earnings where that is lower.

Will employee’s need to provide evidence of entitlement?

The consultation notes that giving parents access to more time off work could be open to abuse, particularly as Neonatal Leave and Pay would be an entitlement to, potentially, a significant number of weeks of paid leave.

The government believes that employers should be able to ask for evidence of entitlement. In requesting evidence, employers would be expected to set out how they are going to handle the information being requested, and whether they have a good reason to retain that information, taking data protection requirements into consideration.

Will a parent have the right to return to the same job?

The government proposes that a parent who is on Neonatal Leave should have equivalent employment protections as a parent would have under the current right to parental leave in respect of older children, including the right to not be treated unfavourably, or to be dismissed because they are taking, or are seeking to take, Neonatal Leave.

The government proposes that “employees on Neonatal Leave should have rights to return similar to those that apply to employees returning from parental leave taken in respect of older children. This means that in certain circumstances, an employee may have the right to return to the same job they were employed in before their absence [my emphasis]”.

How can a parent’s mental health be affected by having a child in Neonatal care?

The consultation cites a survey by the charity Bliss which found that of around 600 parents interviewed, 80% of parents whose babies were admitted into neonatal care reported that their mental health suffered after their experience. The survey also found that: 23% of respondents had been diagnosed with anxiety; 16% has been diagnosed with post-traumatic stress disorder; and 14% had been diagnosed with postnatal depression after their experience of having a baby or babies in a neonatal care unit.

A Bliss survey found that where a baby is kept in neonatal care for longer than two weeks around 36% of fathers and partners were signed off sick while their baby was in neonatal care.

Your business will invariably have policies and procedures in place to support staff when they are off sick, and mechanisms to encourage them back to work. Consider what you could do if a member of staff was diagnosed with depression, or post-traumatic stress. What additional support or flexibility would you offer?

Philip Henson, Head of Employment law at ebl miller rosenfalck says:

The birth of a child brings great joy, but an unexpected admission to a neonatal unit is an intensely stressful and emotional time for the parents and the wider family. It’s a time when parents get to see how supportive their employers actually are.

To share a personal insight, one of my children was in neonatal care for a period and there is very little that can compare to the feeling of helplessness and stress for both parents. There is so little time to reflect on what you and your partner need for your own well-being, as you are entirely focused on the needs of your new born baby.

On reflection, we should perhaps have asked for more help and support [Traditional British reserve is often the default setting!] and I wanted to share my thoughts and tips on the practical matters that employers might wish to consider. I am entirely aware that the level of support offered will vary from the size and resources of the organisation, and the individuals concerned – and you may consider some of my suggestions to be off the wall, or inappropriate – but all employers will want to ensure that their employees are well. Silence and inaction are often not the best way to support someone in need – whatever the situation – but one also has to be conscious of their privacy and respect their wishes.

What can employers do to help?

Carry out research so you understand the issues – The charity Bliss has a detailed website with a lot of practical suggestions and guidance.

Establish a contact point – I would suggest that your employee is provided with a direct phone number, or mobile number, of a HR professional, or senior manager, that they can call/text or email – to discuss their needs. Messages which say “if there is anything that I can do to help then just let me know” just invite the response of “I am fine”. One has to consider whether actions speak louder than words. How can you, and your organisation, actually help?

Be aware that situations may change – The consultation acknowledges that as the baby’s prognosis is likely to change over time, and the exact length of stay in neonatal care cannot be known in advance. How can you be flexible?

Admissions to neonatal care invariably result in overnight stays – and they can be in busy wards, the noise levels can lead to a chronic lack of sleep. So, offering to visit and spend some time at the hospital (especially if they do not have family support nearby) – giving the mother and/or her partner some time to rest could be invaluable to some – but may be too intrusive to others. But you can always volunteer.

Your employee may have other children in childcare or school so there may be some practical things that you can do to offer to help if they do not have friends or family who can support.

If the parents need to travel long distances to the hospital – especially if they are sleep deprived – then consider offering to book a taxi for them. If they need to stay in temporary accommodation near a hospital where their baby is seeking care then perhaps offer to help look for accommodation, and go a step further to see if you can negotiate a discount for them.

Are they covered on your Company insurance plan? If so, can you email them the details, so that they have it to hand?

How do I reply to this government consultation?

If you, or your organisation, would like to reply to the government consultation then you will need to submit your reply by 11 October 2019.

How the ebl miller rosenfalck employment team can help

We not only advise on the current law; we assist our clients in preparing for how the law may change and develop.

Our multi-lingual employment team – We have a multi-lingual employment team in our London office, who can speak English, Danish, French and German. We are well placed to assist international and domestic companies, especially in matters which require cross border advice. 

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

©EBL Miller Rosenfalck LLP, July 2019

¹Good Work Plan: Proposals to support families Consultation – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/819041/good-work-family-support-consultation.pdf

²Available at: www.imperial.ac.uk/media/imperial-college/medicine/deptmedicine/infectious-diseases/neonatology/NDAU-2016-Report-v1.1-(002).pd