Legal Q&A: Additional paternity leave and pay

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The new right to additional paternity leave (APL) comes into force for babies due, and children matched for adoption, on or after 3 April 2011. This new right is in addition to the existing right to ordinary paternity leave of two weeks at the time of the birth or placement. The new right allows the child’s father, or mother’s partner, to take up to 26 weeks’ leave to look after the child if the mother or primary adopter returns to work.

Q Who is eligible for additional paternity leave?

Employees must meet certain criteria. The right applies not only to fathers but also to a spouse, partner or civil partner of the baby’s mother. They must have been continually employed for a minimum period of at least 26 weeks ending with the 15th week before the expected week of birth or before the week of being notified of a match for adoption. They must still be employed by the same employer at the start of APL and have or expect to have the main responsibility for the upbringing of the child (apart from the mother).

In addition, for the employee to be eligible, the child’s mother must have been entitled to statutory maternity leave, statutory maternity pay (SMP) or maternity allowance and have returned to work. Once APL has begun the mother will not be entitled to any further statutory maternity leave or pay.

Q When will I find out that my employee wishes to take APL?

An employee who wishes to apply for APL must notify their employer in writing of the fact at least eight weeks before their leave starts. This notification must include a statement that they wish to take APL, the proposed start and end dates for APL and the expected week of childbirth, and the actual birth date.

In addition, the employee must sign a declaration confirming their eligibility, their relationship with the mother and child and when their leave will start. The mother must also sign a declaration confirming when she intends to return to work and that the employee applying for APL is the father/partner.

The employer must write to the employee within 28 days confirming the start and end date of APL. The employee can change the proposed dates of APL or cancel their APL provided that they give their employer at least six weeks’ written notice unless this is not reasonably practicable.

Q How long does APL last?

A minimum of two and a maximum of 26 weeks’ APL can be taken. Leave must be taken in one-week blocks, all in one go. APL must be taken during the period when the child is aged between 20 weeks and one year.

Q Are employees entitled to be paid during APL and if so, how much?

Not necessarily. At the time the mother returns to work she must have at least two weeks’ SMP or maternity allowance remaining. Payment for the balance of the 39-week payment period may be transferred to the father/partner at the same rate (£128.73 from 3 April 2011, or 90% of weekly earnings if that is less).

Q Do they have any other rights?

During any period of APL, all of the employee’s terms and conditions, apart from those relating to pay, will remain in force. The employee is entitled to 10 keeping-in-touch days. Following their return to work, they will usually be entitled to return to the same job that they were employed in before their APL started. Employees also have the right not to be subjected to a detriment or dismissed for having taken or sought to take a period of APL.

Q Any other pitfalls?

Any fair redundancy process requires the consideration of suitable alternative employment. Employers should bear in mind that, post-April 2011, potentially redundant employees on additional paternity leave as well as maternity or adoption leave should be offered suitable alternative employment in priority to other candidates.

Q What should employers do to prepare?

Most employers will already have existing polices in place to manage maternity, paternity and adoption leave. These polices will need to be amended to incorporate provision for additional paternity leave. The scheme relies largely upon self-certification. Employers may also need to think about what sanctions would be appropriate for fathers who refuse to provide information and or produce false information.

Catherine Wilson, partner, employment team, Thomas Eggar LLP








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