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Redundancy protection, carer’s leave and neonatal care Bills — what employers need to know

Monday 17 July 2023

Three private members’ bills that received government support have now achieved royal assent to become Acts of Parliament — The Protection from Redundancy (Pregnancy and Family Leave) Act, The Carer’s Leave Act and The Neonatal Care (Leave and Pay) Act.

Here, Susan McKenzie and Amy Weir from our employment team outline what employers and employees need to know about each of these key pieces of legislation.

The Protection from Redundancy (Pregnancy and Family Leave) Act

The Protection from Redundancy (Pregnancy and Family Leave) Act offers pregnant women and new parents greater protection against redundancy.

State of play

Currently, employers are obligated to offer an employee who has been selected for redundancy while on maternity leave, shared parental leave or adoption leave a suitable alternative vacancy (where one exists with the employer or an associated employer). In practice, this means that such employees should receive a priority offer of any alternative employment and therefore have enhanced protection from redundancy.

Research commissioned by the Department for Business, Innovation and Skills and the Equality and Human Rights Commission found that approximately one in nine mothers said they were dismissed, made redundant or treated so poorly by their employer during their pregnancy, maternity leave or after their return to work that they felt they had no other option than to leave their employment.

Based on this research, it is estimated that 54,000 women a year may lose their jobs due to pregnancy or taking maternity leave.

Expanding protection from redundancy

The new Act will expand the current period of protection from redundancy. While new regulations will be required to implement the enhanced protection, we already know that:

  • ‘pregnancy’ and ‘maternity’ will be brought forward to the moment the employee informs the employer of their pregnancy and be extended until after the employee has taken maternity leave.
  • the length of the protection after leave will be confirmed in future regulations. However, according to the Government’s press release, “the policy intention is that” there would be “an expanded period covering from when a woman tells her employer she is pregnant until 18 months after the birth”. This would mean that the extension of the protected period would give those returning from a year’s maternity leave an additional six months of redundancy protection.
  • it is anticipated that the same 18-month window would also apply to those taking adoption leave and shared parental leave.
The Carer’s Leave Act 2023

The Carer’s Leave Act 2023 will give unpaid carers a day-one right to one week’s unpaid leave per year to help deal with their caring responsibilities.

The key provisions of the Act will be brought into effect by regulations. These are yet to be put before Parliament and while no date has been specified for when the key provisions will come into effect, this is expected to be in 2024 (likely no earlier than April).

The forthcoming regulations will provide more detail, but so far we know that:

  • there will be a new statutory right for all unpaid carers of one week’s unpaid leave per year to “provide or arrange care for a dependant with a long-term care need”.
  • the one week’s unpaid leave will be a statutory minimum entitlement. As with other types of leave, it will be open to employers to provide payment for such leave or to provide more than the minimum amount of leave.
  • carers leave will be a day-one right, available only to employees (not workers or the self-employed).
  • the definition of ‘dependant’ is very similar to that used for time off for dependants leave.
  • a ‘long term-care need’ is defined as:
    • “(i) they have an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months,
    • (ii) they have a disability for the purposes of the Equality Act 2010, or
    • (iii) they require care for a reason connected with their old age.”
  • employees will have the right to bring an employment tribunal claim about the unreasonable postponement of carer’s leave or an attempt to prevent them from taking carer’s leave.
  • employees will have the right to not be subjected to detriment or dismissal by reason of exercising their rights in relation to carer’s leave.
Neonatal Care (Leave and Pay) Act

The Neonatal Care (Leave and Pay) Act, anticipated to start in April 2025, will provide statutory leave and pay in the event that an employee’s baby requires neonatal treatment (for example, as a result of medical complications or a premature birth).

While the key provisions of the Act will again be brought into effect by regulations, its main aspects are:

  • a day-one right for all employees to be entitled to statutory leave in such cases (likely for a maximum of 12 weeks)
  • a right to receive statutory pay during this period for those who have completed 26 weeks’ service.

Neonatal care leave will be available to parents on top of other family-related leave (such as maternity leave) for parents of babies in neonatal care.

Eligibility criteria will need to be fulfilled in order for employees to take the leave, which must be taken before the end of the period of at least 68 weeks (approximately 16 months), starting with the date on which the child was born. The minimum period of leave will be one week, but the maximum has yet to be finalised. Further eligibility criteria will need to be met for employees to receive neonatal care pay, the maximum duration of which will be no less than 12 weeks.

Forthcoming regulations will provide more detail on aspects of leave and pay, including (but not limited to) the right for employees not to suffer detriment and dismissal as a result of taking the leave.

How we can help

The Government’s press release about these three Acts states that “the Government will lay down secondary legislation in due course to implement these new entitlements”.

While all employers will need to comply with these requirements when they are implemented, many will want to update their policies in advance or tailor solutions to their own workplace to supplement these statutory rights.

If you need legal support to prepare for these changes, talk to us by completing our contact form below.

We know that employers and employees will be keen to understand the impact of all future regulations and what they should do to prepare. We will provide further updates in due course — to make sure that you receive these, subscribe to our mailing list and follow us on LinkedIn and Twitter.

This article contains a general overview for information only. It does not constitute and should not be relied upon as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.

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