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On 3 April this year, the government introduced new paternity rights for fathers and adoptive partners, giving them the right to take up to six months paternity leave. This leave must, however, be taken once the mother, or adopter, has returned to work. Some of the leave may also be taken as paid leave (at statutory paternity pay rates) if the leave is taken during the maternity or adoption pay period.

The entitlement to take additional paternity leave is only available to parents of babies that were due on or after 3 April 2011. To qualify, a father must:

  • Be an employee;
  • Be the biological father of the child or married to or be a civil partner of the child’s mother;
  • Have been continuously employed for at least 26 weeks ending with the 15th week before the expected due date;
  • Remain in employment with the same employer until the first week before the start of the additional paternity leave;
  • Have, or expect to have, main responsibility (apart from the mother) for the bringing up of the child;
  • Be taking time off to care for the child.

In addition, the mother of the child must be entitled to statutory maternity leave and either statutory maternity pay or maternity allowance.

Returned to work

It is also necessary that the mother has returned to work, effectively giving up these entitlements and allowing them to pass over to the father. The result of this requirement is that additional paternity leave is only available to fathers whose wives/partners work. Additional paternity leave is not available to fathers of babies whose mothers do not work.

The intention of the legislation is that only one parent will be absent from work at any one time. This is the reason why it is therefore necessary for the mother to have returned to work before the father can take a period of additional paternity leave.

Appropriate checks

In addition to the above, the father must also satisfy certain notice requirements. However, the requirements are not particularly strict, and fathers are required to ‘self certify’ that they are eligible to take additional paternity leave. Employees who wish to take additional paternity leave must therefore give at least eight weeks’ written notice to employers. There are forms available from HMRC that can be used by employees for this purpose. Alternatively employers can design their own internal forms and incorporate them into an internal HR procedure for handling requests for additional paternity leave.

The employee must give the date that the baby was due, the date of the actual birth and detail of the chosen start and end dates of the additional paternity leave period. The employee must also give a signed declaration confirming that he is taking the period of additional paternity leave to care for the child and that he has, or expects to have, main responsibility (apart from the mother) for the bringing up of the child.

The mother must also provide a signed declaration, giving her full name, her NI number and the date that she intends to return to work upon. The mother is also required to confirm that no other person is exercising a right to take additional paternity leave in respect of the child. Whilst there is no specific requirement for employers to check that the mother’s statements are correct, employers will be able to ask for a copy of the child’s birth certificate. Additionally, employers will be able to request detail of the name and address of the mother’s employer so that an appropriate check can be made to confirm that the mother has returned to work from maternity leave. If an employee fails to respond to an employer’s request for this information he will lose the right to take additional paternity leave.

Contractual benefits

Once an employer receives an employee’s leave notice, it must respond within 28 days, providing confirmation of the leave. Once the additional paternity leave period commences, the leave must be taken in one complete block of between two and 26 weeks and the earliest date that the additional paternity leave can be taken is 20 weeks after the birth.

Whilst the employee is on additional paternity leave, he will remain entitled to all of his contractual benefits and be treated (with the exception of pay) as though he were not absent. The employee will therefore continue to accrue annual leave entitlement. Conversely, the employee will continue to owe the employer the same duties and obligations that he would if he were not on leave.

The employee is also entitled during the statutory paternity leave, in the same way as mothers on maternity leave, to work for the employer for up to ten “keeping in touch” days. These can be either paid or unpaid.

Suitable alternatives

Upon conclusion of the additional paternity pay period the employee is entitled to return to the job that he was employed in before the absence. He should also receive the same seniority, pension and other rights as if he had not been absent and on terms and conditions that are no less favourable. If it is not practicable for the employer to allow the employee to return to the same job, the employer must allow the employee to return to a job that is a suitable and appropriate alternative.

Where the employee’s role is made redundant during the additional paternity leave period, the employee is entitled to be offered a suitable alternative vacancy if there is one available. This places the employee at an advantage over employees who are not absent on additional paternity leave, effectively putting him at the front of the queue for alternative employment.

In order to receive additional statutory paternity pay during the additional paternity period, the mother, at the point that she returns to work, must have not used up all of her statutory paternity pay entitlement. The amount that the father receives will also be dependant upon how much unexhausted statutory maternity pay is available.

Same criteria

To qualify for additional statutory paternity pay, the father (or adopter) must satisfy the same eligibility criteria as for leave (see the bullet points above). In addition, the mother must have returned to work with not less than two weeks of her statutory maternity pay entitlement remaining, and the employee’s earnings for the eight weeks before the 15th week before the expected birth must not be below the lower earnings limit, currently £102 per week.

Additional statutory paternity pay will be paid at the same rate as statutory maternity pay, i.e. the lower of £128.73 per week or 90% of the father’s average weekly pay. Additional statutory paternity pay is only available provided the mother has returned to work and not exhausted her statutory maternity pay entitlement.

In most circumstances, this means that the most a father can obtain additional statutory paternity pay for is 19 weeks. This is because the earliest that the additional paternity leave period can start is 20 weeks after the birth, leaving a further 19 weeks of pay available from the mother’s 39 week statutory maternity pay available from the mother’s entitlement.

For more information, contact Lyons Davidson’s employment team.