Neonatal Leave and Pay – a change in the law from April

On 20 January 2025, the Government introduced regulations to implement the Neonatal Care (Leave and Pay) Act 2023, which gives eligible parents a day one right to neonatal leave and pay from 6 April this year.

The new right confirms that up to 12 weeks of statutory Neonatal Care Leave will be available to employees who are the parent, or have another personal relationship, with a child who is to receive neonatal care for 7 full days or longer within the first 28 days of birth.

There will be two types of statutory leave: Tier 1 leave (for those who take the leave whilst the child is in neonatal care or in the first week following discharge) or Tier 2 (after the child leaves care). The leave is split into 2 tiers as different notification requirements apply to each type of leave. However, all leave must be taken within 68 weeks of the baby’s birth.

Neonatal Care Pay will be available to those who meet the qualification requirements, being that they meet the eligibility requirements for Neonatal Care Leave, have 26 weeks’ continuous service at the time the leave is requested and earn at least the Lower Earnings Limit.

We will provide further information on this entitlement in April when it comes into force.

How much contact should you have with an employee who is off sick?

Disability discrimination and sickness absence – case update

The case of Miss Crette Berry v Anglican Water Services demonstrates how important it is for employers to maintain the right level of contact with employees who are off sick; too much contact, even with good intentions, could end up constituting harassment, as was the case here.

The Claimant was a contact centre agent and worked a flexible, 37-hour week, with her exact shifts determined three weeks in advance. Two months into her employment, she was struggling to manage her menopausal symptoms and stress so she made a flexible working request for her hours to be reduced and her shifts to be more predictable. She said this would allow her time for physical rest and recuperation, and assist her to manage her symptoms.

She was off the next day due to “gynaecological reasons”.  She was referred to Occupational Health (OH), with the OH assessment noting she’d been suffering from endometriosis for about 10 years and was awaiting a hysterectomy.  It also confirmed that she suffered with severe brain fog, pain in her stomach, hot flashes and fatigue.

The day after the Claimant’s OH assessment, she had a flexible working request meeting. It was ultimately agreed that her working pattern would consist of four working days together within a four-week schedule, with her hours being reduced to 30 per week.

The Claimant was then absent on a number of occasions, with her absences eventually crossing the Respondent’s absence trigger point. She attended an absence support meeting in which she informed the Respondent that she was depressed. She then commenced what would be a long-term sickness absence. During her absence, she underwent a hysterectomy. She had a further OH assessment, which confirmed that her recovery period from this surgery would be around 4 weeks.

She was invited to attend a support meeting to take place on 13 January, which would be during her 4-week recovery period. Her manager then contacted her on 10 January as they had not received a response to the invitation.  They contacted her several more times in the coming days via WhatsApp about the meeting. The meeting took place in February in the Claimant’s absence. She resigned at the end of February 2023.

The Claimant brought claims of a failure to make reasonable adjustments and harassment related to disability.

The Tribunal decided:

  • The Claimant was disabled by reason of her menopause, endometriosis and depression.
  • To dismiss her reasonable adjustments claim.
  • To uphold her harassment claim, because of the contact she received after her operation (during her recovery period). It said that she should have been allowed to recover without being disturbed by her employer and, whilst the contact was not intended to harass the Claimant, it did have the effect of humiliating her.

This case emphasises how important it is employers to strike the correct balance between contacting an employee off sick in order to ensure they are meeting their duty of care and giving them sufficient time to rest and recover. The frequency and method of communication will inevitably vary in each circumstance, but it is good practice, if an employee is on long-term sick leave, to agree on the frequency and method of contact with them to avoid a situation like this one occurring.

Wages claim – no longer capped at 2 years? Case update

The case of Afshar and others v Addison Lee Limited has gained significant attention due to the fact the Tribunal presiding over the case held that the two-year backstop on unlawful deduction claims was unlawful because the Regulations which introduced it went beyond their scope.

In brief, the case was about the status of individuals who worked for the Respondent. The Respondent was a private hire business. The Claimants were engaged by the Respondent as private hire drivers. They rented a vehicle from a group company of the Respondent’s and would log into an app when they were available to work.

It is important to note that that there was an earlier ET decision involving the same Respondent in which Claimants of the Respondent’s business were found to be workers. After that decision, the Respondent allegedly changed their business model in an attempt to prevent individuals being classified as workers. They said they stopped imposing sanctions on drivers who refused bookings, changed contractual terms in 2021 to say that drivers were free to refuse jobs, and allowed the right of substitution.

However, the Tribunal held that test Claimants who rented vehicles from a company in the Respondent’s group were workers when they were logged into the Respondent’s software and were available for work. They also said it was untrue that the Respondent had stopped imposing sanctions on drivers and that the contractual terms introduced (including the right of substitution) were theoretical.      

As the Claimants were workers, the Tribunal said they were entitled to carry forward annual leave. It was at this point the Tribunal held that the two-year limitation period imposed on the recovery of unlawful deductions was unlawful. They explained that it was not in principle unlawful for time limits to be imposed for rights which derived from EU law (which this right did), but the two-year back stop had only been imposed so that the UK and EU law were uniform.  In their view, Parliament did not intend for the two-year backstop to be lawfully used to limit the exercise of such rights in domestic law.

Although this is a first instance decision (so other courts/tribunals are not obliged to follow it) employers should be mindful that, where a claim of unlawful deduction of wages is brought against them, it may not necessarily be the case that such deductions are capped at two years (thus such cases could end up being very costly).

Potential changes to the law on Health and Safety Obligations / to prevent harassment in the workplace

In addition to the new employment law obligations which were placed on employers last October to proactively prevent sexual harassment in the course of employment, similar health and safety obligations could be imposed on employers should the Health and Safety at Work etc. Act 1974 (Amendment) Bill pass.

Currently, the Health and Safety at Work etc. Act 1974 places a duty of care on employers to ensure the health, safety and wellbeing of employees as far as is reasonably practicable. However, the Bill takes this one step further, to add obligations on employers to address harassment and violence in the workplace with a focus on sexual harassment.

The Bill, if passed, would require employers to:

  1. Conduct risk assessments to identify potential harassment risks;
  2. Implement policies and procedures to eliminate these risks; and
  3. Provide employee training on recognising and preventing harassment.

Employers who failed to fulfil these obligations could face enforcement action by the Health and Safety Executive, including criminal liability and unlimited fines.

It is important to note that this is a Private Member’s Bill, which rarely become law, but it does highlight how seriously the Government is taking the prevention of sexual harassment in the workplace.

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The information contained in this article is for general use is not intended to be comprehensive or a replacement for obtaining specific legal advice about your situation. Using the information without consulting us or another professional adviser is at your own risk. McKee Campbell Morrison Ltd accept no responsibility and gives no representations or warranties, express or implied, that any of the information and materials on this site is complete, accurate or free from errors or omissions.