New statutory rights to paid leave for workers in the UK are on the horizon, and it looks likely that different regions will introduce different rights for staff. Shoosmiths’ Emma Grossmith, employment senior associate based in Belfast, explains what the new rights are likely to be, where in the UK they will apply, and some of the key things you need to know about them.

Neonatal Care Leave

Once it receives royal assent, the Neonatal Care (Leave and Pay) Bill 2022-23 is intended to give parents in all parts of the UK a statutory right to neonatal care leave if their new baby is receiving, or has recently received, neonatal care. The right to this leave will apply to parents of babies who are admitted into hospital up to the age of 28 days, where the baby has a continuous stay in hospital of seven days or more, and the leave can be taken up to 68 weeks from the date the child is born. This right will be a ‘day one’ right for all employees although staff who have worked for their employer for at least 26 weeks’ will also be entitled to pay at a prescribed rate during their neonatal leave for at least 12 weeks. The draft bill also provides employees with protection from dismissal or detriment due to having exercised their rights to take the leave. The bill doesn’t go into all the detail employers will need to know about the proposed rights, and if and when it becomes law, regulations will set out exactly how much leave could be taken, how much pay would be due, and any other conditions on taking the leave.

Safe Leave

Northern Ireland (NI) looks likely to be the first part of the UK to give workers who experience domestic abuse a legal right to take paid leave. Unfortunately, reports of domestic abuse in NI have risen year on year since records began in 2004-5 and increased home-working over the pandemic seems to have contributed to the problem, prompting the NI Assembly to take action. Currently, workers experiencing domestic abuse have to take annual leave, sick leave or unpaid leave if they cannot work because of domestic violence.

Just before it stopped sitting last year, the NI Assembly passed a law to give workers (including employees) the right to take at least ten days’ paid leave if they experience domestic abuse each leave year. The Domestic Abuse (Safe Leave) Act (the Act) received Royal Assent on 12 May 2022 and, once it is implemented, it will give workers right to take ‘safe leave’ from the very first day of their employment. A lot of the detail about how the new right will work is due to be set out in regulations which the Department for the Economy in NI has been asked to produce. Those draft regulations have not been published, and it isn’t clear yet when they will be, but what is certain is that the right to leave from work will be ‘to deal with issues related to domestic violence’ which includes taking legal advice, finding new accommodation, obtaining healthcare (including mental healthcare) and welfare support, protecting family members and ‘any other matter’ which the regulations specify.

The act will also protect workers’ terms and conditions if they take safe leave (including the right to pay) and will give them a right to bring complaints to an industrial tribunal if they are prevented from taking safe leave, or not properly paid for it. Dismissals related to taking safe leave may also be treated as unfair dismissals.

Miscarriage leave

Although all UK employees have a statutory right to take parental bereavement leave if a pregnancy ends in still birth after 24 weeks, there is currently no separate right to paid leave where a pregnancy ends before 24 weeks. This is something which looks likely to change in the future, but it’s not clear which part of the UK will implement law dealing with this issue first.

A two-month consultation period in NI about legislation entitling workers to miscarriage leave and pay ended on 19 December 2022. The Department for Economy in NI is now reviewing the responses but the Economy Minister Gordon Lyons has made it clear that he wants both workers and employees who experience an ‘unintentional’ miscarriage before the end of the 23rd week of pregnancy to have the same protections as those who experience a still birth after that time. If the NI proposals go ahead, parents (which will include mothers and their partners) who experience a miscarriage would be entitled to two weeks’ leave and pay (at a statutory rate).

As part of the same consultation process, the government also requested views on proposals to change the entitlement criteria for statutory parental bereavement pay, so that the right to both leave and pay would become a “day one” right (currently staff must have worked for their employer for at least 26 weeks to get paid bereavement leave). Once the consultation responses are published, it should become clearer whether this proposal will go ahead.

At Westminster, the SNP MP Angela Crawley introduced the Miscarriage Leave Bill last year with the aim of implementing miscarriage pay and leave for the rest of the UK. Like the NI proposals, the draft bill applies to parents who have suffered a miscarriage in the first 23 weeks of pregnancy, but it proposes that they would be entitled to three days’ paid bereavement leave, so it looks as if the right to paid miscarriage leave in NI may be more generous. The Miscarriage Leave Bill was supposed to have received a second reading in the House of Commons on 2 December 2022, but this did not happen. The second reading is now scheduled to take place in March this year but it isn’t clear whether the government will set aside adequate time for this. Therefore, whilst development in this area seems likely, it’s not clear whether Westminster or Stormont will get there first.

Carer’s Leave

The Carer’s Leave Bill will give employees the right to take one week’s unpaid leave in a 12-month period for the purpose of providing or arranging care for a dependant who requires long-term care. The government has indicated that employees will not be required to give their employers evidence of how they will take the leave or who they are using it for, and the bill is designed to allow the leave to be taken flexibly to suit each individual’s own caring duties. Like Neonatal Care Leave, this is to be a “day one” right for employees, and comes with the same protection against dismissal and detriment for seeking to take the leave. Again the bill doesn’t go into detail about when and how the leave can be taken and this will be set out in regulations.

The bill has completed its journey through the House of Commons and is progressing through the House of Lords. Although it is a Private Members’ Bill, it has the government’s backing, which makes it more likely it will become law. Once law, the right is intended to apply to employees in all regions of the UK.

Tips for employers

Employers in England, Scotland and Wales should already be spelling out their employees’ rights to paid leave in writing, ideally in their employment contract. This includes explaining the rights staff have to paid annual leave and sick leave, and to different types of paid family leave. Although there is currently no requirement in Northern Ireland for employers to specify paid leave rights in the same way, this is still good practice, and employers should keep a close eye on developments so they can make appropriate changes to documents and practice.

Employers should also give proper thought to how they might manage requests for miscarriage leave, safe leave, neonatal care leave, or carer’s leave from a practical perspective. Staff asking for this leave will have to share potentially very personal and distressing information with their employer, so employers should consider:-

• Appointing a ‘family leave’ champion in the workplace, with appropriate skills and training, who can act as a main point of contact, expertise and information for staff who may need to make requests at difficult times in their lives.
• If staff are employed in different parts of the UK, ensuring that policies and training are appropriate and take into account that different statutory rights may apply in different regions.
• Taking steps to ensure that managers on the ‘coal face’ are made aware of the changes, and take a careful approach to discussing leave with staff, particularly given the statutory protection against dismissal and detriment that will come with the new rights.
• Considering how a ‘safe leave’ policy might operate in practice, including clarifying how and to whom, staff should raise any concerns about their own, or another worker’s safety as well as providing staff with training to recognise signs of domestic abuse.
• Reminding staff that any information shared about family circumstances, health or domestic abuse is sensitive and confidential information and should be handled in line with the employer’s rules on information management and the GDPR, and that breach of those rules could be regarded as a serious disciplinary offence.
• Reminding staff that carers may well have additional legal rights if they are associated with a person who is ‘disabled’ for employment law purposes.
• Reviewing health and safety protocols for home or hybrid workers, to make sure they are safe in all the places where they work, including in their home.