Under the Employment Rights Act 1996, an employee whose partner is having a baby may be entitled to paternity leave in order to care for the child or support the mother. Where a couple is involved in adopting a child, one of the couple may be entitled to adoption leave (adoption leave) and the other may be entitled to paternity leave. An employee is entitled to paternity leave in respect of a child who is born alive or who is stillborn after 24 weeks of pregnancy. The details of the right to paternity leave are set out in the Paternity and Adoption Leave Regulations 2002. (There are separate regulations that explain how the right applies where the child is adopted from overseas. Your Association can advise you on the effect of these.) Employees are entitled to paternity leave if they have completed 26 weeks' continuous employment with their employer by the end of the fifteenth week before the end of the week their baby is due, or by the week in which the adoption agency confirms the adoption match.
Paternity leave is available to the child's biological father, provided he has responsibility for the child's upbringing. It is also available to an employee who is married to or the partner of the child's mother or adopter and has the main responsibility (apart from the mother or adopter) for the child's upbringing. A 'partner' is someone who lives with the mother or adopter and the child in an enduring family relationship, but who is not a parent, grandparent, sister, brother, aunt or uncle of the mother or adopter. A partner may be of the same sex as the mother or adopter, and couples involved in an adoption may decide that the woman should take paternity leave while the man takes adoption leave. The employee taking paternity leave may therefore be a woman. This summary of the law is based on the more common situation where the employee taking paternity leave is a man.
An employee can opt to take either one or two consecutive weeks' paternity leave. The statutory scheme does not allow for paternity leave to be taken in odd days or in two separate weeks, although there is nothing to prevent companies allowing this. (If they do so, however, they should bear in mind that the statutory paternity pay scheme reflects the statutory paternity leave scheme, so they will not be able to recoup from the Government any payment they make to the employee for odd days or the second of two separate weeks of leave (statutory paternity pay ).)
The maximum length of paternity leave is two weeks for each pregnancy or adoption arrangement, even if the mother has a multiple birth or more than one child is adopted.
The employee can choose to start paternity leave on the date of the child's birth or placement, or a specified number of days after the child is born or placed, or on any specified date later than the first day of the week the birth or placement is due. The employee can change his mind about the start date, but must give his employer notice of the change (see 'Notice requirements' below). If the employee planned to take leave from the date the child was born or placed and is at work on that day, his leave starts the next day. If the employee planned to take leave on a specified date but the child has not yet been born or placed by then, the employee will need to alter the start date.
Paternity leave must be taken within 56 days of the child's birth or placement. If the baby was born before the week in which the birth was due, the leave must be taken within 56 days of the beginning of the expected week of childbirth.
There are various notice requirements that the employee must meet in order to qualify for paternity leave, and the employer can ask for these notices to be given in writing. If it is not reasonably practicable for the employee to meet these deadlines, he must give notice as soon as is reasonably practicable.
- Intention to take leave.
For birth children, the employee must give notice of his intention to take paternity leave in or before the fifteenth week before the week the baby is due. The notice must specify the expected week of childbirth, the length of leave the employee will be taking and the date the employee wants the leave to start. For adoptive children, the employee must give notice within seven days of the adoption match being notified. The notice must specify the date the match was notified, the date the child is expected to be placed, the length of leave the employee proposes to take and the date the employee wants the leave to begin. - Changing the start date.
If the employee wants to change the date on which his leave is to start, he must give the employer notice of that fact 28 days before the new start date. Where the child has not been born or placed for adoption by the start date the employee originally notified, he must let his employer know the new start date as soon as reasonably practicable. - Notice of birth or placement date.
Once the child is born or placed for adoption, the employee must let the employer know the child's birth day or placement date, as soon as reasonably practicable. - Declaration of entitlement.
If his employer asks him to, the employee must confirm in writing that he is taking leave for the purpose of caring for his child or supporting the child's mother or adopter, and that he meets the eligibility requirements (who qualifies? ).
HM Revenue & Customs has produced a form that employees can use to apply for paternity leave and pay (see related links).
An employee on paternity leave is entitled to the benefit of all his usual terms and conditions of employment, apart from those relating to wages or salary. Likewise, the employee is bound by all his usual obligations under his employment contract, except for those that are inconsistent with his right to be away on paternity leave.
The Social Security Act 1989 requires that an employee who is receiving statutory or contractual paternity pay must be treated for pension purposes as if he were working normally and receiving his normal pay. Any pension contributions he is required to make, on the other hand, must be based on the paternity pay he is actually receiving.
Employees may qualify for Statutory Paternity Pay (SPP) during their paternity leave. The right to SPP is laid down in the Social Security Contributions and Benefits Act 1992 and the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002. In order to qualify, an employee's normal weekly earnings in the eight weeks ending with the fifteenth week before the week their baby is due, or in the eight weeks before the week in which the adoption match is notified, must be at or above the lower earnings threshold. This is reviewed annually and is £90 from April 2008.
An employee must give his employer 28 days' notice of his intention to claim SPP. Or, if that is not possible, as much notice as he can.
SPP is paid at the same weekly rate as flat rate SMP, that is, £117.18 from April 2008 per week or 90 per cent of normal weekly earnings, if that is less. Employers can recoup their SPP payments from their National Insurance contributions, in the same way as they do SMP (recouping smp ).
On return from paternity leave, an employee is entitled to return to the same job, on the same terms and conditions as would have applied had he not been absent. If he wants to change his working hours or place of work to care for his child, he has the right to apply to do so (the right to request flexible working ).
There are complicated rules on the position of an employee returning to work after combining paternity leave with one or more consecutive periods of other family leave. Companies who need advice on this should contact their Association.
It is unlawful for an employer to treat an employee unfavourably for any reason connected with his right to paternity leave. Likewise, it is automatically unfair to dismiss an employee for a reason relating to paternity leave, including selecting the employee for redundancy on that basis, regardless of the employee's length of service.
Although paternity rights are substantially less generous than maternity rights, men cannot bring a sex discrimination claim on that basis. The Sex Discrimination Act 1975 and the Equal Pay Act 1970 expressly allow especially favourable treatment for women in relation to pregnancy and maternity.
Employers should ensure, however, that any family benefits they offer that do not specifically relate to pregnancy and childbirth are extended to male as well as female employees. This could apply, for example, to financial help with childcare expenses.