Statutory Paternity Rights

Statutory Paternity Rights

 

Lisa Gillis and Christina Morton, Employment Lawyers at Withers LLP explain Paternity rights.

Until recently, statutory paternity leave (now known as ‘ordinary paternity leave’) has been limited to one whole week or two consecutive weeks’ leave.  New laws permitting qualifying employees to take extended periods of additional paid paternity leave (referred to as ‘additional paternity leave’) of up to 26 weeks’ came into affect on 6 April 2010. The new rights will be available where the expected week of birth (or, in an adoption case, the adoption match) falls on or after 3 April 2011.


The existing right - ordinary paternity leave


The right to ordinary paternity leave is available subject to certain conditions:

  •  The employee must take the leave within 56 days of the date of birth of a child (or date of placement of an adopted child);
  • The employee must have 26 weeks' continuous employment at the 'qualifying week'. In a birth case, the qualifying week is the fifteenth week before the week in which the baby is due; in an adoption case, it is the week in which the adoption match takes place;
  • The employee must be either: the father of the child (with responsibility for the child's upbringing); or the partner (of either sex) of the mother (with the main responsibility, apart from that of the mother, for the child's upbringing). In an adoption case, the employee must be the adopter's partner (with the main responsibility, apart from that of the adopter, for the child's upbringing). Where both members of the couple adopt, only the one who has not chosen to take adoption leave may take paternity leave; and
  •  The absence must be for the purpose of caring for the child, or supporting the child's mother (or adopter) in caring for the child.  The employer can request that this be evidenced by way of a signed declaration from the employee confirming that is the purpose of the leave and that they satisfy the various eligibility criteria.

 

Notification


Eligible employees also need to satisfy notification requirements, including confirming in writing their intention to take such leave, relevant due dates, length of leave that they intend to take, date on which they wish the leave to commence and child’s date of birth/placement.   Notifications generally need to be made within specified time limits and there are also procedures to follow if variations are required.


Additional Information


Usual terms and conditions of employment continue during ordinary paternity leave (save in respect of remuneration) and employees are normally entitled to return to the same job. 


During the period of ordinary paternity leave, statutory paternity pay is generally payable to those employees eligible to take such leave if they fulfil a minimum earnings requirement (currently £97 per week).
 

The new right – additional paternity leave


The new right, to between 2 and 26 weeks' additional paternity leave, will be available where the expected week of birth (or, in an adoption case, the adoption match) falls on or after 3 April 2011. This additional leave must be taken in complete weeks and as one period.  More generous entitlements will apply if the mother (or primary adopter) dies.
The new right is available subject to conditions similar to those that apply to ordinary paternity leave:

 

  • The employee must have 26 weeks' continuous employment at the 'qualifying week'. In a birth case, the qualifying week is the fifteenth week before the week in which the baby is due; in an adoption case, it is the week in which the adoption match takes place;
  • In a birth case, the employee must be either: the father of the child (with responsibility for the child's upbringing); or the partner (of either sex) of the mother (with the main responsibility, apart from that of the mother, for the child's upbringing). In an adoption case, the employee must be the adopter's partner (with the main responsibility, apart from that of the adopter, for the child's upbringing). Where both members of the couple adopt, only the one who has not chosen to take adoption leave may take paternity leave;
  • Both the employee and the mother (or primary adopter) must comply with notice and evidential requirements, including a ‘certificate' from the mother (or primary adopter) confirming their own entitlement to statutory pay or leave and the relationship with the employee seeking additional paternity leave;
  • The mother (or primary adopter) must have returned to work before exhausting their entitlement to maternity leave (or adoption leave). The right to additional paternity leave only crystallises on the mother's (or primary adopter's) return to work, but the leave need not be taken immediately; a gap is permitted; and
  • The employee may take additional paternity leave only in the period beginning 20 weeks after the birth (or placement for adoption) and ending 12 months after the birth (or placement for adoption). The purpose of the leave must be to care for the child.                                                                                                                                                   

Additional information about Additional Paternity Leave

 

Once the employer has received the employee's notice (at least 8 weeks before the intended start of the leave), it must confirm in writing (within 4 weeks) the start and end dates of the leave. The employer may request certain additional information (to satisfy itself regarding the employee's eligibility) if it wishes.  There are also specific rules where the employee wishes to vary the dates of leave or cancel it.
 

 

Usual terms and conditions of employment will continue during additional paternity leave (save in respect of remuneration) and the employee will generally be entitled to return to the same job.  Where a redundancy situation arises during additional paternity leave, an employee on such leave will be entitled to special protection in that they will have an automatic right to be offered a suitable alternative vacancy.

 

If the leave is taken before the end of the mother's maternity pay period (or primary adopter's adoption pay period), part of it may be paid.  Payment is at the same prescribed weekly rate as ordinary paternity pay (£124.88 in 2010/11 but a revised rate will apply once the new right comes into effect) and is subject to the same minimum earnings requirement (currently £97 per week).

 

Employers who offer enhanced maternity rights more generous than statutory minimum requirements may take the view that they also need to offer comparable enhanced paternity rights. 

 

Guidance on the new rights will be put in place before 3 April 2011 to ensure that employers and employees are aware of the changes and have sufficient information about them.

 

Further Information and Disclaimer


Please note that where a child is being adopted from outside the UK, the rules concerning such leave may differ from those set out above.


Additionally, employers might institute their own schemes to run alongside or enhance the statutory entitlements.

For further information or to discuss your own situation please contact Lisa Gills or Christina Morton on 020-7597 6000 www.withersworldwide.com

Disclaimer: The authors accept no responsibility for actions taken as a result of the above article. When considering legal proceedings legal advice should be sought.