Paternity leave and rights

Ordinary paternity leave

 

New fathers and partners (including same sex partners) of new mothers, are entitled to paternity leave. They may take one or two consecutive weeks.

 

They must have been employed for at least 26 weeks before the 15th week before the baby is due.

 

If they earn more than the NI Lower earnings limit they will be entitled to Statutory Paternity Pay, which is paid at a flat rate.  From April 2012 the rate is £135.45 a week or 90% of normal weekly earnings if that is lower. 

 

The provisions relating to paternity leave grant the right to:

·        new fathers

·        male and female partners of the birth mother

·        partners (of the same or opposite sex) of someone who is adopting (or who are jointly adopting)

 

Additional paternity leave

 

Additional Paternity Leave (APL) is available in two situations – in the case of the birth of a child, or an adoption. We focus on the rights available to a new father, but it should be noted that the right extends to partners (including same-sex partners) of the mother who are not the father, as well as partners of adopters.

 

Some of the conditions mirror those for paternity leave entitlement (the two weeks entitlement). Employees will continue to be ‘ordinary paternity leave’. Ordinary paternity leave’ can be taken immediately upon the birth of the child – additional paternity leave can start no earlier than 20 weeks after the birth.

 

One significant limitation is that it is only available if the child’s mother is entitled to maternity leave (or SMP or MA) and has returned to work. Thus only one parent can be absent from work to provide care at a time.

 

How much additional paternity leave can be taken and when can it start?

·        At least 2 weeks, but no more than 26 weeks

·        Can only be taken in blocks of complete weeks

·        Can be started any time after 20 weeks from birth and must be completed within 12 months of the birth

 

Although the mother and father cannot both be on leave at the same time, maternity leave and additional paternity leave need not be consecutive – there may be a gap between the two periods – for example if the mother has returned to work before the child is 20 weeks old additional paternity leave cannot begin until the child reaches 20 weeks.

 

Who is entitled to it?

 

There are 2 sorts of conditions that must be met – the conditions which the person seeking additional paternity leave must meet, and the conditions which must apply to the mother.

 

The mother must be entitled to either at least one of either maternity leave, Statutory Maternity Pay or Maternity Allowance and must have returned to work.

 

This means that:-

  • If the mother is entitled to maternity leave, the leave has ended and/or
  • If she is entitled to Statutory Maternity Pay or Maternity Allowance, those payments have ceased because she has started working.

 

The person seeking additional paternity leave must:-

  • be the father of the child, or
  • the partner of the child’s mother (married, a civil partner, or a co-habiting partner)
  • have completed at least 26 weeks continuous employment by the start of the 15th week before the week in which the baby is due
  • still be employed the week before the additional paternity leave is due to start
  • comply with the notice requirements

 

Special rules apply where the mother dies following the birth.

 

Notice requirements

 

No later than 8 weeks before he wants to start his additional paternity leave, the father must give his employer 3 things:-

  • A ‘leave notice’ – a written notice stating:-
    • The expected week of childbirth
    • The child’s date of birth
    • The start and end dates for additional paternity leave
  • An ‘employee declaration’ – a written and signed statement to the effect that:-
    • the leave will be used to care for the child
    • the employee meets the conditions of entitlement (for example he is the father of the child)
  • A ‘mother declaration’ – a written declaration by the child’s mother stating:-
    • the mother’s name and address
    • The date she intends to return to work
    • Her NI number
    • That P satisfies the conditions of entitlement (for example is the father)
    • The so far as the mother knows, P is the only person intending to take additional paternity leave for this child
    • That she consents to the processing of information in the notice.

 

Standard forms (SC7 in the case of a request by a father) have been produced by HMRC to ensure that all of the necessary information is provided, but an employer may provide its own forms or an employee may simply send a letter.

 

The employer may, within 28 days of receiving the notice, request a copy of the child’s birth certificate and details of the mother’s employer. However the employer is not required to check that the information given is accurate.

 

The father has a continuing duty to notify the employer if his right to additional paternity leave changes in any way, for example if the mother changes her return date.

 

The father can change the date on which he wants to start additional paternity leave (or cancel his request altogether) but must give at least 6 weeks notice. Failure to do so will give the employer the right to insist he take the leave as originally requested.

 

‘Keeping in touch’ days

 

As in the case of maternity leave, the regulations allow for employees to carry out up to 10 days work with their employer whilst they are on additional paternity leave, without affecting their right to leave. The regulations are silent about whether the father should be paid for this work at his normal rate of pay.

 

Right to return to work

 

An employee will usually be entitled to return to the same job he was doing before he started additional paternity leave, unless he has taken more than the maximum leave for example under a contractual scheme.

 

Right to be offered alternative employment in a redundancy situation

 

If an employee on additional paternity leave is made redundant, they have a right to be offered any suitable alternative employment that the employer (or an associated employer) has available. This is similar to the right that employees on maternity leave have – and it means that employees on additional paternity leave will have to be offered a vacancy before it is offered to other employees. This might, of course, give an employer a headache if they have employees on both additional paternity leave and maternity leave, and have only one alternative vacancy.

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