Paternity leave Q&A

Fathers figure – How will new paternity rights give more flexibility to couples? Sabahhit Ali looks at what the proposals will mean for employed fathers.

Q When are the new paternity rights likely to come into force?

A The Work and Families Bill, introduced into Parliament in October 2005, set out a range of new measures for working parents. Some of the proposals came into force in April 2007 and others, such as fathers being allowed to take additional paternity leave, are still under consultation until August 2007.

Since no regulations have been published and further consultation is expected, the new paternity rights are unlikely to come into force before 2009.

Q What do the new proposals suggest?

A Employed fathers will be entitled to up to six months’ additional paternity leave (APL), some of which may be paid, subject to fulfilling certain requirements. APL is in addition to the two weeks’ paternity leave fathers may already take which must be taken within eight weeks of the birth of the child.

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

Q When can APL be taken?

A APL cannot begin until at least 20 weeks after the birth of the child and the mother must return to work. What constitutes a return to work is still under consultation.

Q How will the proposals work in practice?

A In April 2007 the government extended the entitlement to statutory maternity pay (SMP) from nine to 12 months. This means the father can receive a maximum of six months’ statutory paternity pay (SPP).

Under current proposals the mother and father will self certify to the father’s employer that he is eligible for additional paternity leave and pay (APL&P). The father will be required to give a minimum of eight weeks’ notice of his intention to take APL&P. Any period of leave must be taken in one block and is subject to a minimum period of leave.

The father will not be entitled to additional statutory paternity pay, unless the mother is entitled to SMP or maternity allowance (MA) – and has some of this entitlement remaining at the time the father starts additional statutory paternity pay – and the mother returns to work before exhausting her full entitlement to SMP or MA.

Q Can both parents take leave at the same time?

A No, currently the proposals state that if the mother does not return to work, the father will not be eligible for APL – but this is still under consultation.

Questions being asked are: can the mother take parental leave or annual leave to overlap with the father’s APL, and can the father delay taking APL where the mother takes annual leave at the end of her maternity leave?

Q Can the father come back to his same job?

A Further consultation is being undertaken on this point but it is proposed that fathers will enjoy equivalent rights to that of mothers on ordinary maternity leave, ie to benefit from the terms and conditions which would have applied to him had he been at work, except for the terms providing for remuneration. In addition, he will be able to return to the same or similar job.

It is also expected that fathers will be entitled to ‘keeping in touch’ days without losing any entitlement to SPP.

Q How will the new rights be administered?

A The implementation raises complex practical issues and one of the main concerns raised during consultation is whether the administration of the rights will be burdensome on the employer. Since the father’s entitlement to leave is contingent upon the mother’s entitlement, the tricky issue arises of how to verify the entitlement.

Under current proposals, the mother and father will self certify to the father’s employer that he is eligible for APL&P. There is no involvement by the mother’s employer or HM Revenue & Customs (HMRC). To combat the possibility of false claims being made it is proposed that the HMRC would carry out spot checks and any persons found to be making a fraudulent claim would be hit with a hefty fine, running potentially to several thousand pounds.

Q Are the proposals likely to be popular?

A The uptake of the new rights is not likely to be very high and is only likely to be attractive to those families where the mother is the higher earner. The government predicts that between 10,000 and 22,000 fathers will take up the right to APL&P in the UK. These estimates are based on Scandinavian countries, where parents can already share family-friendly leave. The proportion of fathers taking leave ranges from 3% in Finland to 16% in Iceland.

If paternity pay was increased to double its current rate (£112.75 per week), the uptake is likely to be more in the region of 80%.

While it is unclear at this time how parents will respond to these new rights, in practice, the rights are unlikely to be popular with those parents on low incomes. At the other end of the spectrum, those on good incomes and progressing on the career ladder are also unlikely to take any significant time off for fear of being pushed down the promotion ladder.

If the concerns are ironed out and the proposals are taken on board with open arms, it may eventually lead to social acceptance that both parents can assume responsibility for a child in its early days. It may even play an active role in the evolution of attitudes towards the traditional roles of mothers and fathers in the home and at work.

Sabahhit Ali is a solicitor at Thomas Eggar

Thomas Eggar is one of the UK’s leading regional law firms, providing HR professionals with innovative and pre-emptive strategies for dealing with HR issues.