Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch Anna’s video which discusses the recent ruling from the Scottish case that went to the Supreme Court and has given us a ruling on the meaning of the protected characteristic of ‘sex’ under the Equality Act 2010. This video discusses the potential issues and implications arising from this ruling.
Anna Denton-Jones
Refreshing Law
On the 6th of April 2025, the Neonatal Care (Leave and Pay) Act 2023 came into effect, providing eligible parents with a right to up to 12 weeks statutory leave and pay when their baby requires neonatal care. The aim is to support families during a challenging time by offering them the ability to spend dedicated time with their baby whilst they are receiving medical care without it eating into their paid family leave.
What is Neonatal Care Leave?
The Act entitles employees to up to 12 weeks of leave when their baby, born after the 6th of April 2025, requires neonatal care within the first 28 days of birth. Parents can take one week of leave in respect of each week that the baby receives neonatal care (up to a maximum of 12 weeks) and such leave must be taken within 68 weeks of the child’s birth. It is a day one right, it is available to both parents and importantly, it is in addition to any other leave the parent may be entitled to, such as maternity, paternity or adoption leave.
How is Neonatal Care Leave taken?
How the leave can be taken will depend on what other types of parental leave the employee is entitled to and whether the leave is used whilst the baby is in hospital, or later in the 68 weeks. This is referred to as Tier 1 and Tier 2.
Employees taking maternity leave will only be able to take Tier 2 leave. Maternity leave will be triggered by the birth of the baby and cannot be stopped and restarted later. Employees will need to take their maternity leave and then their accrued Neonatal Care Leave all in one go once maternity leave is over. Conversely, employees taking paternity leave will be able to take Neonatal Care Leave more flexibly. Tier 1 will allow them to take leave whilst their baby is still in hospital. They can also take Tier 2 leave if they wish to reserve some Neonatal Care leave for after the baby has been discharged.
| What do the Tiers mean? | Tier 1 | Tier 2 |
| Tier 1 starts when a baby begins receiving neonatal care and ends the 7th day after the day the baby stops receiving neonatal care. For twins/multiple births where more than one baby is receiving care, Tier 1 continues until the 7th day after the day the last baby stops receiving care. | Tier 2 starts 7 days after the baby is discharged from neonatal care. It runs through to 68 weeks after the baby’s birth. | |
| Who is likely to use this leave? | Dads and non birthing parents. Mums and birthing parents. Dads and non birthing parents taking leave more than 1 week after the baby is discharged. | |
| When can your employee take this leave? | While the baby is still in the hospital and up to 7 days afterwards. It can fit around pre booked Parental Leave. More than 1 week after the baby is discharged. After finishing maternity leave. | |
| How does your employee take this leave? | In non-consecutive week long blocks. In consecutive week long blocks. |
What about Statutory Neonatal Care Pay?
Whilst the ability to take Neonatal Care Leave is a day one right, like with other paid family leave, employees have to meet eligibility criteria in order to qualify for statutory neonatal pay, including that they have been employed for 26 weeks by the end of the week prior to the baby’s hospital admission. Statutory neonatal care pay will be at the statutory prescribed rate, which is currently the lower of £187.18 or 90% of the employee’s average weekly earnings.
6 key things to consider as an employer
The government anticipates that the new rights will benefit around 60,000 new parents so the changes are likely to be widespread and far reaching. We have identified our top 6 things for you to consider to ensure you are compliant and prepared:
If you would like to discuss any aspect of the new Neonatal Care Act or require a policy, please do not hesitate to contact Lousha at lousha@refreshinglawltd.co.uk.
Lousha Reynolds
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses what a COT3 Agreement is.
Anna Denton-Jones
Refreshing Law
Carozzi v University of Hertfordshire [2024] EAT169 related to a Brazilian national of Jewish ethnic origin who was working at the University and resigned during her probationary period, bringing a number of claims.
Amongst those claims, was a harassment claim on the ground of race. Her complaint arose out of comments around her accent which was very strong and made it difficult for her to be understood. These comments were found by the original Tribunal not to be harassment, on the basis that they were not motivated by race but were instead discussing her comprehensibility when communicating orally.
The Employment Appeal Tribunal overturned this finding, holding that looking for a motivation was wrong. Whilst treatment can be related to a protected characteristic where it is “because of” it, it can also occur where the alleged harasser is not motivated by the characteristic at all.
The Employment Appeal Tribunal noted that an accent can be an important part of somebody’s national or ethnic identity and criticising their accent could therefore be related to the protected characteristic of race, and violate that person’s dignity.
This case confirms the position that the test for being “related to” a protected characteristic can be satisfied by establishing an objective link between the conduct and characteristic, without the need for the conduct to be motivated by the characteristic. This makes it much wider than the “because of” or “reason why” test which applies in direct discrimination claims.
Employers need to train managers to make sure that they understand that picking somebody up on what might be a challenging accent to understand, is likely to get them into difficulty.
Anna Denton-Jones
Refreshing Law
The Employment Rights Bill was introduced to Parliament on 10 October 2024.
The aim of the bill is to modernise employment rights legislation. Anna has prepared a number of videos which outline some of the changes the bill introduces:
This video discusses the duty to prevent sexual harassment and can be found here.
This video discusses the initial period of employment and can be found here.
This video discusses the removal of the 2 year qualifying period to claim unfair dismissal and can be found here.
This video discusses the position as regards the impact on redundancy and can be found here.
This video discusses the position as regards collective redundancy – so large scale redundancy and can be found here.
The videos were recorded on 30.10.2024.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses the new preventative duty in relation to sexual harassment and the amendment to the Equality Act that is coming into force on 26 October 2024. This is Anna’s second video on the subject.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses the extension to our sexual harassment legislation that is coming into force in the autumn and some of the issues employers need to consider in this area.
Please note that the contents of this video is subject to any changes that are made in the Commission for Equality and Human Rights Guidance which is due out over the summer period.
Anna Denton-Jones
Refreshing Law
In any redundancy situation, the employer is going to have to decide what selection process they follow. One of the key questions in such a process is whether a group of employees need to be pooled for selection with some kind of assessment taking place as to who stays and who goes or whether the pool just involves one person, in which case if that post disappears, then the person in post at the time is the one who is selected for redundancy.
In a recent EAT decision, Valimulla v AL-KHAIR Foundation found that it was unfair dismissal not to have consulted about the appropriateness of the pool. The individual concerned worked as a Liaison Officer covering the North West of England and there were other employees who did the same thing albeit in other geographical areas. As a result of Covid, work for Liaison Officers decreased across the country and the employer decided to place the employee at risk of redundancy in a pool of one. The other Liaison Officers were not placed at risk. Three consultation meetings were held with the individual about the redundancy in general but they did not consult about the appropriateness of the pool.
When it reached the Employment Tribunal, the original Tribunal accepted that there was a pool of one. The employee appealed and the Employment Appeal Tribunal allowed that appeal, holding the consultation on redundancy needs to take place at a time when it could make a difference, which of course would be right at the beginning of the process.
Make sure that if you do have a reason to choose a pool of one, that you document what your reasons for doing that are. Include consultation with the individual affected about your thought process, ie. give the employee the opportunity to challenge your thinking and make alternative suggestions. You will then need to weigh what they have said against your own process and decide what methodology is most appropriate.
This the second recent decision going to the root of redundancies reminding us of the importance of process, that shouldn’t be skipped.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video where Anna discusses a recent case which caught Anna’s eye and involved a large amount of money being awarded. It seems to be a classic case of somebody being promoted out of their comfort zone, how they were managed and the lessons learned from the case. Anna discusses the importance of having a job description and clear expectations of what the employer expects the employee to be achieving.
Anna Denton-Jones
Refreshing Law
I have had a handful of recent cases where Occupational Health have advised employers in relation to employees with anxiety problems that the employee’s duties exacerbate their condition.
In all of these cases a recommendation has been reducing telephone duties so that the employee is taking less calls during the day or completely stopping telephone duties altogether so the employee is, for example, focusing on emails rather than telephone calls. In these cases, the employer has done entirely the right thing in trying to follow the Occupational Health advice, adjusting the duties accordingly, but there has been no plan for the long term. What is accommodatable initially and what is planned for when, after a few months, the employee has got into the habit of not dealing with telephone calls either at all or dealing with only a few? If you aren’t careful you end up in a situation where the employee is not performing large parts of their role and everyone is stuck.
Rather than agreeing outright to the adjustments, it may be sensible to agree to a temporary adjustment with a discussed plan for how you get from that place of a reduced requirement to carry out a particular activity and back to the contractual duties being performed.
To put it another way, given the cost it takes to support somebody’s mental health to make adjustments, it is misleading to alter things that are not going to be able to be accommodated in the long run. That just creates false expectations and could be achieving more harm than good over time.
Alternatives to reducing the duties completely might be:
Remember Occupational Health are just providing you with suggestions – it is up to you to decide, as an employer, whether or not you can accommodate those suggestions. It is possible that you will have roles within your organisation that cannot actually be adjusted to prevent some core duty of that role taking place. In that scenario you might actually be saying no you can’t make a particular adjustment because it is not reasonable to do so.If we aren’t making an adjustment then we need to be able to justify why not to a Judge, if that ever became necessary, so having evidence to back up that decision will be useful. Is there evidence of how many phone calls a day are taken in that role? What is the proportion of the day spent doing other activities? Are the phone calls critical to generating the work that the person then does?
Anna Denton-Jones
Refreshing Law
We care about your privacy. To help us improve our service, we may collect data to understand how people use our site. By allowing all cookies, we can enhance your experience. This means helping you find information more quickly and tailoring content or marketing to your needs. Some cookies are necessary for the site to function correctly.