Legal opinion: Transferring maternity leave to fathers

Last week the government issued a consultation paper giving further details of its radical proposals to enable mothers to ‘transfer’ substantial parts of their maternity entitlements to fathers.

The consultation focuses on the thorny issue of how the scheme will be administered in practice. The good news for employers is that the government favours a ‘light touch’. But employers will have the burden of undertaking administrative checks under the new system and will, in effect, bear the risk of fraudulent claims. The current proposals do little to assist employers.

Inevitably, it is the administration that will cause the headaches. The government proposes that the father and mother should self-certify to the father’s employer that he is eligible for additional paternity leave and pay, thereby avoiding the need to involve the mother’s employer or HM Revenue & Customs (HMRC).

Start planning now

The earliest the proposals will be implemented is April 2009. But employers should start planning now and keep maternity and paternity pay policies under review.

Crucially for employers, it is still unclear how the new rights will be administered on a day-to-day basis. This may happen if the mother has not returned to work and is still claiming statutory maternity pay (SMP), or may be due to a last-minute decision to postpone the father’s leave or bring it forward.

The government acknowledges this is tricky and is asking for views. It will also monitor the scheme closely once it is introduced. But is this enough protection for employers?

The draft regulations should ensure the father’s employer will be able to make checks with the mother’s employer. Data protection issues must not be allowed to prevent this.

Risk of fraud

A major concern for employers will be the risk of fraud. HMRC regards this as a relatively low risk, and believes spot checks would be an appropriate way of dealing with it. The consultation suggests penalties of £3,000 for false declarations. These, it suggests, should be rigorously enforced to ensure fraudulent claims are minimised.

However, employers will be reliant on self-certification by individuals who are not their staff, with no right to check the mother’s maternity leave status direct with her employer.

At the very least, the government should clarify that there is a Data Protection Act waiver, which would require a mother’s employer to give relevant information to the father’s employer if requested.

Government research indicates that about 239,000 fathers would be eligible for additional paternity leave and pay each year, and expects this figure to increase.

However, low-paid staff are unlikely to have the financial resources to take up the rights, unless the mother earns substantially more than the father. Higher-paid staff may fear ‘career death’ if they take up the right. A little over £100 per week paternity pay is unlikely to be sufficient temptation for men to risk the career consequences.

Key proposals

  • Fathers will be entitled to up to six months’ additional paternity leave if the mother returns to work early.

  • It will be unpaid unless the mother returns to work before exhausting her full entitlement to statutory maternity pay (SMP). In those circumstances, the father will receive statutory paternity pay (SPP) for the remaining period during which the mother would have received SMP.

  • The mother must take six months’ leave so the father can benefit from these payment provisions.

  • The government intends to extend SMP from nine months to 12 months, so the father could receive a maximum of six months’ SPP.

  • The employee will be required to give a minimum of eight weeks’ notice of his intention to take additional paternity leave and pay (APL&P).

  • APL&P will be available to partners and civil partners of mothers and adopting couples who are eligible.

By Sarah Keeble, employment partner, Olswang

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