UK: The New Right to Additional Paternity Leave – How Does it Operate?

Last Updated: 13 July 2010
Article by Bird & Bird's Labour & Employment Group

Introduction

Fathers are currently entitled to a maximum of two weeks leave upon the birth or adoption of a child. The Work and Families Act 2006, however, has been amended to provide significantly enhanced new rights to additional paternity leave and pay.  Fathers and co-adopters will soon be able to take up to 26 weeks' additional paternity leave provided their spouse, civil partner or partner has returned to work.  The new rights will apply from April next year.  

In this focus article we aim to provide useful guidance for employers on how these new rights will operate in practice.

Who is Eligible?

Employees whose babies are due on or after 3 April 2011, or who have been matched for adoption on or after that date, will be entitled to additional paternity leave (APL) provided they satisfy certain conditions.  These essentially mirror the requirements for the existing statutory paternity leave regime but also include (i) that the child's mother has been entitled to maternity leave or in adoption cases to adoption leave; and (ii) that the child's mother or the co-adopter has returned to work with some of their maternity or adoption leave remaining. 

What Are They Entitled To?

The minimum period of APL that eligible employees are entitled to is two consecutive weeks and the maximum period is 26 consecutive weeks. It is subject to certain conditions.  APL can only be taken in multiples of complete weeks and in one single period.  It can only be taken if the child is over 20 weeks old and under one year old (or where the child has been placed with his or her adoptive family for 20 weeks within the first year of being placed for adoption).

Are There Any Notification Requirements?

There are detailed notice requirements that employees must comply with before taking APL.  First, eligible employees must give their employer written notice at least eight weeks prior to the day upon which they intend to take leave.  In addition, the notice must contain details of the child's date of birth or date of placement (in the case of an adoption), explain the nature of the employee's relationship with the child's mother or co-adoptor and include a declaration that the purpose of the leave is to care for the child.

Employees will also be expected to produce a written "mother declaration" from the child's mother or primary adopter.  The purpose of this document is to certify, amongst other matters, that the mother or co-adopter intends to return to work prior to the expiry of his or her adoption or maternity leave and that the employee in question is the only person exercising the right to take APL in relation to the child.

Employers will be entitled to request copies of the child's birth certificate and the name and address of the mother's or co-adopter's employer, within 28 days of receipt of the employee's leave notice.

What About Payment?

Eligible employees will be entitled to receive Additional Statutory Paternity Pay (ASPP) for certain periods during APL. 

ASPP will be paid at the same rate and calculated in the same manner as the current entitlement to statutory paternity pay.  Payment will be conditional upon the mother or co-adopter being entitled to maternity allowance, statutory maternity pay or statutory adoption pay and having returned to work with at least two weeks of their entitlement to such remaining.  The amount of ASPP payable will equate to the amount of unexpired weeks of maternity allowance, or statutory maternity or adoption pay remaining when the mother or co-adopter returned to work. 

What Terms and Conditions Apply During APL?

The contract of employment remains in force throughout APL, except for terms that relate to pay.  In this regard, the position is similar to that of maternity leave.  Employers should therefore be cautious not to withdraw benefits such as company cars, mobile phones, and childcare vouchers that the employee would have been entitled to had he or she been at work and holiday will continue to accrue.

Are There Provisions for Keeping in Touch?

An employee may work for up to ten days for their employer without jeopardising their APL or ASPP entitlement.  These are referred to as "keeping in touch days" (KIT days) and are similar to KIT days that apply during maternity leave.  Payment for KIT days should be agreed with the employee in question.  Where the employee is receiving ASPP or some form of contractual paternity payment, it should be possible for this to be offset against any payment made for KIT days. 

What About Returning to Work?

Employers should be aware that, as a general rule, an employee has the right to return from APL to the same job on terms and conditions that are no less favourable than they would have been had he or she not taken APL. The only exception to this rule is where an employee has combined APL with certain other types of statutory leave, such as a period of parental leave of more than four weeks.

Conclusion

Keeping up to date with changes to the law and matters of best practice is crucially important for any employer.  Employers should become familiar with these new rights for employees and how they may impact upon them in practice.  In particular, we recommend that employers should review and update their paternity leave policies and procedures to ensure that they are up to date with the law and are ready to cope with forthcoming requests for additional paternity leave and pay.

Understanding and taking steps to deal with these issues now will allow employers to minimise the risk of falling foul of the new law and claims arising when these changes take effect next year.

This article represents a summary only and we are able to supply you with detailed advice on additional paternity leave.  With this in mind, please do not hesitate to get in touch should you have specific queries about the ways in which such changes might affect you and the preparatory measures that you can take.

www.twobirds.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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