Employers advised to amend paternity pay policy

Fathers will have the right to take up to 26 weeks' additional paternity leave with the introduction of the Work and Families Act 2006.

Until 6 April 2010, eligible fathers were entitled to take up to two weeks paid paternity leave within 56 days following the birth of their child or, in the case of adoption, the date of placement of the adopted child. The mother of the child, however, is entitled to up to 52 weeks maternity leave, 39 weeks of which are paid.

It was recognised that this was an outdated approach which did not reflect the realities of modern living. As a result, when the Work and Families Act 2006 was introduced it made provision for the extension of a father's entitlement to paternity leave and pay with the aim of giving families greater flexibility to decide who is best placed to stay off work and care for their child within its first year.

Draft Regulations came into force on 6 April 2010 which will apply to babies born on, or after, 3 April 2011 or for adoptive parents who have been notified of having been matched with a child on or after this date.

What is the Right?

Eligible fathers will have a right of up to 26 weeks' additional paternity leave (APL) before the child's first birthday if the child's mother returns to work before exercising her full maternity/adoption leave entitlement. APL must be taken at least 20 weeks after the child is born and within 12 months of the date of birth. APL must be taken in complete weeks, as one continuous period and with a minimum of two weeks being taken.

Eligibility

To be eligible, fathers must self-certify by providing details of eligibility to their employer and provide a declaration that they satisfy the requirements, which is known as the employee declaration.  This will include details of their relationship with, and responsibility for, the child and that they have the requisite 60 weeks continuous service.

The father must also show that the mother satisfies certain criteria and provide a declaration from the mother that they satisfy the requirements, which is known as the mother declaration.  This will include the mother declaring that she is entitled to maternity leave, statutory maternity pay or maternity allowance in relation to the child to whom the APL application relates and that she has returned, or has been treated as having returned, to work.

Exercising the Right

In order to exercise his right to take APL, the father must provide his employer with the following information eight weeks in advance:

•        employee declaration

•        mother declaration

•        notice specifying child's expected week of childbirth, date of birth and dates employee wishes to take (known as the leave notice).

Rights

Just as for women on maternity leave, fathers who take APL enjoy similar legal rights.  For example:

•        benefit from all contractual terms and conditions (except remuneration) which would have applied had they not been absent

•        have the right not to be subjected to a detriment or dismissed for taking, or seeking to take, APL

•        have the right to take up to 10 "keeping in touch" days

Notification Requirements

An employee wishing to take APL is required to notify their employer of the dates they wish to take APL.  The dates can be amended provided at least six weeks' notice is given.  If an employee wishes to return early from APL but fails to provide the required six weeks' notice an employee’s return can be delayed so that the six weeks' notice has been given.

Is APL paid?

If an employee is eligible for APL then they are also likely to be eligible to receive additional statutory paternity pay (ASPP) subject to their earnings meeting the minimum threshold requirements (currently £95 per week) and that the child's mother is eligible to receive statutory maternity pay or maternity allowance.

ASPP is the lower of the current rate of £124.88 or 90% of normal weekly earnings. ASPP is only paid during the 39 week maternity pay period during which the mother would have been entitled to receive statutory maternity pay or maternity allowance and she has not exhausted this entitlement.

Points for Employers

In terms of practical issues, employers will need to review their maternity/paternity leave and pay policies in line with the extended rights and may need to set up systems (including the introduction of standard forms) to administer APL. Where an employer offers enhanced maternity pay, in terms of good employee relations, they may also wish to consider offering enhanced paternity pay for paternity leave and APL.

For further information please contact employment solicitor Lynne Woodhead on 01604 233 233 or click here to email her now.