Paternity law - what you need to know
Fathers now have more rights which employers need to be aware of, warns employment lawyer, Matthew Welch from Bath Law.
Prior to the General Election, the Labour Government passed the Additional Paternity Leave Regulations 2010. The regulations now cover those with babies born on, or after 3 April 2011. The changes are quite radical and could catch out many businesses.
The change
At present, eligible employees can take up to two weeks leave as ordinary paternity leave (OPL). Under the new regulations, from this month, employees can now take additional paternity leave (APL) of up to 26 weeks. Eligible employees will be able to take both OPL and then APL. As well as applying to employees whose child is due on, or after 3 April 2011, APL will apply to adoptive parents notified that they have a matched child on or after this date.
Who is eligible?
The criteria for eligibility for APL are broadly similar to OPL. As with OPL, the employee needs to be continuously employed for 26 weeks up to the 14th week before the expected week of birth, but the employee must also remain continuously employed until the week before the start of their APL. In addition, for the employee to qualify for APL the child's mother must be entitled to maternity leave, or statutory maternity pay (SMP), maternity allowance and have returned to her work. The idea of APL is for the father, or mother's partner, to share the responsibility of childcare, and for the father, or the mother's partner, to take over from the mother when she returns to work.
How long is APL?
The minimum period of leave is two weeks and the maximum is 26 weeks, and it can be taken from 20 weeks after the child's date of birth, or placement for adoption, until 12 months after the date of birth or placement, providing the mother has returned to work before the APL starts.
What notice does the employee need to give?
The employee must provide their employer with a written 'leave notice' which includes the child's expected week of birth, the child's date of birth, and the dates the employee wants to take as APL. The employee must also provide a signed 'employee declaration' and a written 'mother declaration'. Then within 28 days of receiving the employee's notice, the employer must give the employee written confirmation of the dates of the employee's APL.
Once the employee and employer have given their notices, is the date for APL fixed?
Not always. There are circumstances where the employee must withdraw their notice, including if they discover they are not the child's father, or where they cease to have responsibility for bringing up the child, or where the mother has not returned to work.
The employee can change the dates of their APL providing the APL has not yet started and they give the employer six weeks' notice. The employee can also return to work earlier providing they give at least six weeks' notice.
What happens if the employee's job becomes redundant while they are on APL?
Employees on APL are treated as favourably as women employees on maternity leave. In effect, they are allowed to go to the head of the queue and have to be offered, before any other employees, any suitable alternative employment. Failure to offer alternative employment to an employee on APL whose job has become redundant will make the employee's dismissal automatically unfair.
Does the employee have to return to their
old job?
The regulations are quite complex but essentially, as with maternity leave, the employee should not be put at a disadvantage by taking APL, and is entitled to return to their old job, with their seniority, pension rights and other contractual rights as they would have had if they had not been on APL.
What paternity pay are they entitled to receive?
Employees on APL are entitled to receive Additional Statutory Paternity Pay (ASPP), providing they comply with the eligibility, notification criteria and a low earnings limit. ASPP can be claimed from the date APL starts, which will be when the child is 20 weeks old, and ends on the child's first birthday, or the end of the mother's maternity allowance, or statutory Maternity Pay period. The idea is that the employee on APL in effect takes over the mother's SMP.
How much is ASPP, and who pays it?
From 11 April 2011, it is £128.73 per week, or, if less, 90% of normal weekly earnings. The employer pays the ASPP but can reclaim 92% of it from HMRC, as with SMP. Small businesses may also be able to reclaim 100% of ASPP or SMP and an additional compensatory amount if their total Class 1 NIC liability is below £45,000 per year.
Additional paternity leave will be disruptive to the business. Is there anything I can do?
Sadly, there is little you can do, and you need to be careful how you deal with employees applying for or taking APL, because if a dismissal is connected with the employee taking or seeking OPL or APL, it will be automatically unfair. An employee can also bring a tribunal claim to seek compensation if they can show they have suffered a detriment, like loss of pay or benefits, or if they have been unfairly disciplined or demoted.
