Paternity The following is intended to provide a brief introduction to the subject of paternity. It explains some of the key basic ideas relating to this subject and should not be taken or treated as legal advice. Any specific queries or problems relating to issues covered in this briefing note may be addressed via the Markel Helpline. Paternity rights give eligible employees the right to take paid leave to care for a child or to support the mother or adopter upon the birth or adoption of a child. Paternity rights are available to both men and women and now broadly mirror maternity rights in many ways. 1. Conditions To qualify for ordinary paternity leave (OPL), employees must satisfy the following conditions:- 1.1. Birth requirements: Be continuously employed by their employer for a period of not less than 26 weeks ending with the week immediately prior to the 14th week before the expected week of childbirth (known as EWC). If the child's actual birth date is earlier than expected, the original expected birth date is nevertheless used for the purposes of calculating continuity of service when considering an employee's eligibility. Be the father of the child or be married to, or the civil partner of, or otherwise the partner of the child's mother/adopter, even if they are not the child's biological father. Have, or expect to have, responsibility for the upbringing of the child, if the employee is the child's biological father. Alternatively, have, or expect to have, main responsibility (other than the child's mother) for the child's upbringing if they are married to or otherwise the partner of the child s mother/adopter. 1.2. Adoption requirements: The employee has or expects to have responsibility for the child s upbringing; and The employee is the adopter s spouse or partner; and
The employee is not taking adoption leave; and The employee has worked continuously for their employer for 26 weeks ending with the week in which the adopter is notified of being matched with a child. 2. When paternity leave will begin and end Eligible employees can choose to take either 1 week or 2 consecutive weeks OPL. They may not take odd days. Leave must be taken in blocks of 1 week. OPL is separate to the 13 weeks unpaid parental leave which employees may also be entitled to (see separate guidance note on Parental Leave). Employees can choose to start their leave: from the date of the child s birth (whether this is earlier or later than expected); or the child s placement (for adopted children); or from a chosen number of days or weeks after the date of the child s birth (whether this is earlier or later than expected) or the child s placement; or from a chosen date after the expected week of childbirth or placement. The leave can start on any day of the week on, or following, the child s birth or placement but must be completed: within 56 days of the actual date of birth/placement of the child; or if the child is born early, within the period of the actual date of birth up to 56 days after the first day of expected week of birth. Employees are only entitled to one period of OPL, irrespective of whether more than one child is born from the same pregnancy or if more than one child is placed with an adopter at the same time. 3. Notification requirements 3.1. Birth notification requirements:
Employees must inform their employers of their intention to take paternity leave by the end of the 15th week before the baby is expected, unless this is not reasonably practicable. They must inform their employers of: The week the baby is due; Whether they wish to take 1 or 2 weeks leave; and When they want their leave to start. 3.2. Adoption notification requirements: Within 7 days of the adopter being notified by their adoption agency that they have been matched with a child, or, if this is not reasonably practicable, as soon as possible. The employee must notify their employer in writing of the following: The date on which the employee was advised of the match; The date of placement; Whether the employee wishes to take 1 or 2 weeks leave; and When the employee wishes their paternity leave to start. 3.3. Both birth and adoption notification requirements: Employees can change their mind about the date on which they want their leave to start providing they tell their employer 28 days in advance, unless this is not reasonably practicable. Employees should also tell their employers of the date they expect any payments of Statutory Paternity Pay (SPP) to start at least 28 days in advance, unless this is not reasonably practicable. Employees must give their employers a completed self certificate as evidence of their entitlement to SPP and paternity leave.
By producing a completed self certificate, employees can satisfy both the notice and evidence conditions for paternity leave and pay, and employers are not expected to carry out any further checks. 4. Additional paternity leave (APL) Under the Additional Paternity Leave Regulations 2010, an eligible employee will be permitted to take a maximum of 26 weeks Additional Paternity Leave (APL) before the child s first birthday. However, the right will only arise where the employee s spouse, civil partner or partner has returned to work with some of their statutory maternity / adoption leave untaken. The purpose of the leave must be to care for the child. APL will only affect parents whose babies are born on or after 3 April 2011 or who, in relation to adoption, are notified of having been matched on or after 3 April 2011. The earliest a father or partner will be able to take APL will be: 20 weeks from the date of birth of the child; or 20 weeks from the date of placement for adoption. The minimum period of APL that may be taken will be 2 weeks and the maximum period will be 26 weeks. APL must be taken in multiples of complete weeks and as one period. Gaps between the end of statutory maternity leave or adoption leave and the beginning of APL will be permitted to enable families to have greater choice and flexibility. An employee wishing to take APL will be required to give a minimum of 8 weeks notice as this mirrors the minimum notice period required from a mother who wishes to return to work early from her maternity leave. The employee must also provide a written leave notice confirming that they meet the requirements for OPL (see above) and a written mother declaration from the mother/adopter stating: the mother/adopters name, address and national insurance number; the date on which she intends to return to work; that the employee is either the child s father or is their spouse, civil partner or partner and has, or expects to have, the main responsibility (except for the mother/ adopter) for bringing up the
child; that to her knowledge the employee is the only person exercising the entitlement to APL in respect of that child; and that she consents to the employer processing the information that she has provided in the declaration. Once notice is received the employer must, within 28 days, provide written notice of the start and end date of the period of APL. An employee wishing to return early from APL must give the employer 6 weeks notice of the date on which they wish to return. 5. Notice requirements Employers should be aware that there are circumstances in which: An employee must withdraw their notice to take APL; An employee may choose to vary or cancel their APL; An employer may still require the employee to take APL (where they have submitted a withdrawal notice or they have given insufficient notice to vary APL ). For more specific advice on these issues should they arise please contact the Markel helpline. 6. Statutory paternity pay During OPL employees are entitled SPP from their employer, as long as their average weekly earnings equal at least the Lower Earnings Limit for National Insurance Contributions (currently 111 per week). The rate of SPP is the same as the standard rate of Statutory Maternity Pay (SMP) which is currently 138.18 per week, or 90% of their average weekly earnings, whichever is lower. This rate increases every April.
For an employee to receive additional statutory paternity pay (ASPP) the mother/adopter must have been entitled to SMP or maternity allowance and must have returned to work with at least two weeks of SMP/maternity allowance remaining. During APL, the employee is entitled to be paid the equivalent amount of ASPP as the mother/adopter has remaining of her SMP. For example, where the mother/ adopter has taken a total of 29 weeks paid maternity leave they will have 10 weeks of SMP remaining. Therefore, the employee taking APL can be paid ASPP for 10 weeks. Those employers who do not qualify for ASPP may be entitled to claim social security benefits and should contact their local job centre for advice. Employers should be aware that they may recover the amount of SPP/ASPP they pay out in the same way as they may claim back SMP. Any employers who require assistance in dealing with claiming back SPP/ASPP should contact Her Majesty s Revenue and Customs (HMRC). 7. Terms and conditions during paternity leave Employees are entitled to benefit from their normal terms and conditions of employment, except from terms relating to wages or salary (unless their contract provides otherwise) during paternity leave, If the employee does have a contractual right to paternity leave they may take advantage of whichever is the more favourable, the contractual or the statutory right. Employees are entitled to return to the same job following paternity leave, unless this is not reasonably practicable. In such circumstances the employee is entitled to return a job which is suitable for them and on terms and conditions which are not less favourable than those they worked under prior to taking APL. 8. Protection for employees taking paternity leave Employees are protected from suffering unfair treatment or dismissal for taking, or seeking to take paternity leave, Employees who believe they have been treated unfairly can complain to the Employment Tribunal. However, employees who take paternity leave other than to care for a child or to support the mother
can be subject to disciplinary proceedings. 9. Reasonable contact and keeping in touch days During paternity leave employers are permitted to maintain reasonable contact with employees. Reasonable contact will depend on the particular case therefore it may be best to agree with the employee roughly how often and the method of contact he or she would prefer. It is particularly important that an employee on paternity leave is informed of any changes that may affect their terms and conditions, be consulted regarding redundancy or TUPE transfers and be informed of any vacancies within the company otherwise they will be able to pursue a claim in the employment tribunal. All employees on paternity leave are entitled to take up to ten keeping in touch days throughout the length of their paternity leave. Employers cannot force employees to use their KIT days and employees must obtain agreement from the employer before they can use a KIT day. Employees must be paid for KIT days, usually this would be their contractual rate of pay, however anything paid to the employee is automatically offset against the amount of SPP they would receive that week. It may therefore be wise to ensure that the employee is aware of this prior to them agreeing. KIT days can be used for any purpose such as attending training courses, meetings or simply to ease back into work prior to return. 10. Shared leave From 2015 the government plans to introduce a new system of statutory parental rights whereby both parents will be able to share between themselves the 52 weeks maternity leave and pay that is currently only available to women. DAC Beachcroft LLP March 2014