New parental leave entitlement and key case law decisions

The Neonatal Care (Leave and Pay) Act 2023

From 6 April 2025, the Neonatal Care (Leave and Pay) Act 2023 entitles employees who are parents to babies requiring neonatal care after birth to take up to 12 weeks of neonatal care leave (“NCL”). This applies to children who:

1. Are admitted into specialist hospital care up to 28 days old
2. Have a continuous hospital stay of 7 full days or longer.

The period of up to 12 weeks of NCL is in addition to parents’ existing maternity, paternity, or shared parental leave and must be taken within the first 68 weeks of the child’s birth.

This leave must be taken in weekly blocks, with parents being entitled to one week of NCL for each qualifying week that their baby spends in neonatal care. Employees must comply with various notice requirements, which differ depending on whether the leave is taken:

• When the child is still receiving care and a week after the care is ended (“Tier 1”)
• The period outside Tier 1 before the end of 68 weeks from the child’s birth (“Tier 2”).

Tier 1 leave notice must be given before employees are due to start work, on the first day of leave, or as soon as possible afterwards.

Tier 2 leave notice must be given:

• 15 days before the proposed start date for one week’s leave
• 28 days before the proposed start date for two or more weeks’ leave.

Whilst NCL is a day-one right, meaning there is no requirement for a qualifying period of continuous employment, there is eligibility criteria to qualify for NCL pay, including 26 weeks’ continuous service before the “relevant week”, which is determined according to any other pay the parent qualifies for, such as statutory maternity, paternity or adoption pay.

Employers should prepare or update family leave policies accordingly to provide some clarity, both to employees and their managers.

It’s important that these requests are handled sensitively, bearing in mind that employees will be going through a difficult time already. Acas guidance suggests that employers should act flexibly and compassionately – for instance, by accepting that a friend or family member may initially inform them of the situation. However, this should not be treated as formal notice under the Act, which must still be provided by the employee themselves in accordance with the Tier 1 or Tier 2 notice requirements.

Case Law Updates

Handa v Station Hotel (Newcastle) Ltd and others [2025] EAT 62

The Employment Appeal Tribunal (EAT) considered whether two external HR consultants, who were involved in the grievance and disciplinary processes of a dismissed employee, would be liable as agents in the employer’s decision to dismiss him, which he claimed was due to him making protected disclosures.

The EAT upheld the Employment Tribunal’s earlier decision to strike out these claims, finding no reasonable prospect of success based on the existing facts. The consultants’ roles were limited to investigation and recommendation without decision-making authority. As the decision to dismiss was outside their remit, agency liability could not extend to them. The EAT further clarified that merely providing services to an employer does not establish an agency relationship sufficient for personal liability under the Employment Rights Act 1996.

OFSTED v Hewston [2025] EWCA Civ 250

In Hewston v Ofsted, the Court of Appeal upheld the Employment Appeal Tribunal’s decision that an Ofsted inspector was unfairly dismissed for brushing rainwater off a pupil’s head and touching their shoulder.

Of significant importance was the fact that at the time, Ofsted did not have a “no-touch” policy and had not provided any relevant training on this matter. Therefore, Mr Hewston could not have foreseen that such conduct would constitute gross misconduct. Further, the Court did not accept Ofsted’s argument that Mr Hewston’s lack of remorse elevated the seriousness of the incident, confirming that an employee’s failure to show remorse does not transform minor misconduct into grounds for dismissal.

This reminds employers of the requirement to provide explicit guidance on expected conduct and the benefits of having clear written policies to be relied on in disciplinary matters.