Legal Q&A: Paternity leave

Spending more time with the family won’t just be reserved for Father’s Day following the recent publication of a consultation on proposals to extend paternity leave to enable employed fathers to take up to 26 weeks’ additional paternity leave.

Q What rights do fathers have to paternity leave at present?

A Fathers who qualify for paternity leave can take either one or two weeks’ paid leave within 56 days after the child’s birth. To qualify, the father must have 26 weeks’ continuous service with his employer by the 15th week before the expected week of childbirth (EWC). Paternity leave is paid at the same rate as the flat rate of statutory maternity pay (SMP), ie, the lower of either £112.75 a week or 90% of pay.

Q What will change when the new proposals become law?

A There will be a new right to additional paternity leave (APL) and additional paternity pay (APP), which will allow a father “to be absent from work on leave for the purpose of caring for the child” when the mother has returned to work from maternity leave.

APL will be in addition to the current two-week paternity leave entitlement, which in future will be called ordinary paternity leave (OPL). Civil partners and members of adopting couples will be able to benefit from the new right.

APL will be a minimum of two weeks and a maximum of 26, and will have to be taken in one continuous block within 12 months after the birth.

For the father to qualify for APP, the mother will have had to have returned to work and have some of her entitlement to SMP, maternity allowance or statutory adoption pay left at the time of her return.

The mother does not need to have physically returned to the workplace, but must have finished her maternity leave. She could still be absent on annual or parental leave, or off sick.

Fathers will have to have been eligible to take OPL and to continue in employment with the same employer up to the intended date of taking APL.

Q How much pay will fathers on paternity leave be entitled to?

A Additional statutory paternity pay will be paid at the same rate as ordinary statutory paternity pay. The flat rate is currently £112.75, or 90% of earnings if less, calculated as an average over an eight-week period up to and including the 14th week before the EWC.

Q What rights will fathers have during APL?

A As APL will be the first major period of leave taken by the father, the terms and conditions that will apply during APL will be the same as those that would apply to a woman taking ordinary maternity leave. The father will be entitled to all his contractual benefits (except pay) during the period of leave, and will have the right to return to the same job. Employers will need to consider whether to amend any existing contractual maternity benefits schemes, such as enhanced maternity pay, to apply to fathers taking APL.

Q When will the new paternity rights come into force?

A The proposed changes are still being consulted on, but the government has said that the earliest date that additional paternity leave and pay will be implemented will be for babies due in April 2009. The intention is to bring in the change at the same time as extending SMP from 39 weeks to 52 weeks, with the aim of enabling an equal division of paid leave between parents.

Q What if the mother doesn’t work?

A Under the current proposals, the father’s rights are dependant on the mother’s, and the right will only apply where the mother is employed and takes maternity leave.

Q This all sounds very complicated – will there be a lot of paperwork?

A The government is currently consulting on the details of how APL will be administered, but has said that its intention is to keep the scheme as straightforward as possible. It is proposed that the father and mother will self-certify key facts regarding eligibility for leave for the father’s employer, and that there would be no need for the father’s employer to carry out checks with the mother’s employer.

The father would be required to notify his employer at least 15 weeks before the EWC that he wishes to take OPL, how much leave he wants to take, and the date leave is expected to start. The father would be required to give his employer at least eight weeks’ notice that he wished to take APL, notifying the dates APL would start and finish, the date of birth of the child, the EWC, the date SMP started and would finish, and the date the mother intends to return to work. The mother would then sign a separate declaration to confirm that she was entitled to maternity leave and intended to return to work.

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