Weekly dilemma: Additional paternity leave

I have heard that rules have been introduced allowing new parents to take a longer period of paternity leave where the mother has returned to work. How does this operate, and what do we have to pay employees who choose to do this?

The rules on paternity leave have just undergone a major shake-up. Qualifying employees can now take up to 26 weeks of additional paternity leave (APL), an increase from the two weeks that were already on offer. Separate, but similar, provisions arise in the case of placement for adoption.

Employees are now entitled to take one period of APL, from a minimum of two weeks up to a maximum of 26 weeks. APL can commence 20 weeks after the birth and must be completed by 12 months after the birth. The right to take APL comes into force once the employee’s spouse/partner has returned to work from statutory maternity leave.

Eligibility depends on the circumstances. The employee will be eligible if he or she:

  • is the child’s biological father, or spouse/partner of the child’s mother, or a person other than the mother who will have responsibility for the child;
  • has at least 26 weeks of continuous service by the 15th week prior to the expected week of confinement (EWC); and
  • is still employed at the same company at the time when the APL is taken.

The employee must give at least eight weeks’ “leave notice” of intention to take APL, confirming the child’s expected week of birth and the date of birth, together with the elected dates of APL.

The employee must also provide in writing:

  • a signed “employee declaration”, stating that the purpose of the APL is to care for the child, and that the employee is appropriately connected to the child (eg as the father); and
  • a “mother declaration”, stating the mother’s name and address, the date on which she intends to return to work, her national insurance number, and confirmation that: the employee is the father (or is her husband or partner); to the best of her knowledge the employee is the only person exercising the entitlement to APL in respect of that child; and she consents to the processing of the information in the declaration.

Practical tips for employers

  • Be aware of the steps of the statutory procedure. When you become aware that an employee’s partner is pregnant (or adoption is on the cards), remind them of the possibility of taking APL and the requirements for notification.
  • Check compliance of any of your policies dealing with APL. Draw these to the attention of staff.
  • Leave entitlement will probably be shared between parents who work for different employers. Therefore, you may require confirmation from the other employer as to what leave has been taken in order to assess eligibility for APL.
  • It is possible that employees in same-sex relationships who take APL (often in relation to adoption) may face opposition from colleagues. There should be clarity that harassment in this regard will not be tolerated. This is an opportunity to review and update relevant policies, including equal opportunities and bullying/harassment policies. You should also consider investing in training for staff, which will reduce the risk of harassment and of discrimination claims.
  • The eight-week notification requirement to take APL is relatively short (in operational terms) to put alternative arrangements in place. Employers should encourage employees to give more notice, and should consider in advance how to react should certain key members of staff intend to take APL.

You must confirm in writing to the employee within 28 days of receipt of the leave notice the start and end dates of the APL.

If you wish to see further evidence, you may, within 28 days of receiving the leave notice, request that the employee provides a copy of the child’s birth certificate and the name and address of the mother’s employer. The employee must respond within a further 28 days.

An employee can issue a “withdrawal notice” any time up to six weeks prior to the beginning of the APL period. The employee can issue a withdrawal notice after that time, but in that case you may still insist that they take APL on the dates previously notified if it is not reasonably practicable to accommodate the variation.

The employee is entitled to carry out work for a maximum of 10 days during any period of APL. This is similar to the “keeping in touch” arrangements currently in place under the maternity leave regime.

Where the employee wishes to return to work early, he or she can give at least six weeks’ notice of early return.

The employee is entitled to return to the job that he or she held before the APL. However, as with maternity leave, the entitlement is not absolute and depends on the nature of the leave taken. If the employee has taken more than one type of statutory leave, then the employer should seek further advice. It may be the case that the employee is entitled to return to another job that is suitable and appropriate to do in the circumstances.

An employee who seeks to take APL and complies with procedure is protected from detriment. Likewise, were the employer to dismiss the employee because they are seeking to take APL, the dismissal would be automatically unfair.

However, as with employees on maternity leave, he or she would be entitled to preferential treatment in the event of redundancy. Where it would not be practicable by reason of redundancy to continue to employ him or her, the employer must offer any suitable alternative vacancies to the employee within the business or within any associated company.

Of course, the unexpected often occurs. The following events will complicate matters:

  • the death of the mother following birth;
  • where the entitlement to APL ceases to apply (eg where the employee and mother separate); or
  • the death of the child.

What do we have to pay employees who opt for APL?

Assuming that the employee’s normal weekly earnings for the eight-week period up to the 15th week prior to the EWC are at least the lower earnings limit (currently £102 per week), the employee will be entitled to additional statutory paternity pay (ASPP) for a period equivalent to the mother’s unexpired pay period. After that period has expired, the employee will have no entitlement to be paid unless their contract of employment states otherwise. However, the employer is of course entitled to offer enhanced paternity pay.

You should check the position in your policies – if you currently pay full salary during ordinary (two-week) paternity leave, you may wish to clarify that you will only pay ASPP during APL.

ASPP is paid at the same rate as ordinary statutory paternity pay and is a standard rate set by the Government (£128.73 from April 2011) or at 90% of the employee’s average weekly earnings if lower.

In addition to ASPP, the employee is entitled to their usual contractual benefits except for “remuneration” (which does not include pension contributions or childcare vouchers). Contractual entitlements might include: gym membership, participation in share schemes and use of a company car or mobile telephone (unless they are solely for business use).

Keith Irwin, solicitor, employment, Shepherd and Wedderburn LLP

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