Additional paternity leave and pay: overview

Kath Sadler-Smith of Osborne Clarke begins a series of articles on additional paternity leave and pay with an overview. The right to additional paternity leave and additional statutory paternity pay will apply in relation to babies due on or after 3 April 2011, and children matched for adoption on or after that date. Qualifying parents will be able to transfer leave and payment from the mother or primary adopter to the father or partner. 

Introduction

The Work and Families Act 2006 provides the framework for the introduction of a new right for fathers to take additional paternity leave and receive additional paternity pay. The key Regulations are the Additional Paternity Leave Regulations 2010 (SI 2010/1055) and the Additional Statutory Paternity Pay (General) Regulations 2010 (SI 2010/1056 ), which came into force on 6 April 2010. However, they apply only in respect of babies due on or after 3 April 2011, or adopted children where the adopter is notified of a match for adoption on or after 3 April 2011. Additional paternity leave and pay is available to women as well as men (for example in the case of same-sex relationships, or where an adoptive father is the primary adopter).

The Additional Paternity Leave Regulations 2010 will entitle eligible fathers and partners to take an additional paternity leave period of up to six months, to care for the child. For the father or partner to benefit from this right, the mother, or primary adopter, must have returned to work.

Additional paternity leave will have to be taken before the child's first birthday or within the first year of adoption. It cannot begin earlier than 20 weeks after the child's birth or 20 weeks after the date when the child is placed for adoption.

Qualifying for additional paternity leave

To qualify for additional paternity leave, the father or partner will need to satisfy eligibility conditions, which, to a large extent, mirror those for qualifying for ordinary paternity leave (previously known as statutory paternity leave). He or she must:

  • be the child's father or be married to, the civil partner or partner of the child's mother in the case of births, or, in the case of adoptions, be married to, the civil partner or partner of the primary adopter, and have been matched with the child for adoption;
  • have, or expect to have, responsibility for the child's upbringing (other than the responsibility of the mother or primary adopter);
  • be continuously employed by his or her employer for at least 26 weeks ending with the 15th week before the expected week of the child's birth (the EWC), or ending with the week in which he or she was notified of the match for adoption;
  • have remained in employment with the same employer until the week before the first week of additional paternity leave; and
  • be taking the leave to care for the child and/or support the child's mother or primary adopter in caring for the child.

Requesting leave

Employees who wish to take additional paternity leave will need to give their employer at least eight weeks' notice of their intention to take leave. The request for leave must include, in writing, a leave notice, an employee declaration and a mother or primary adopter's declaration.

In the leave notice the employee must state:

  • his or her name;
  • the week in which the mother was expected to give birth, or, in the case of adoptions, the date on which the employee was notified of a match;
  • the date that the child was actually born or the date of placement; and
  • the dates on which he or she wishes additional paternity leave to start and end.

The employee will also have to give the employer a written declaration stating that he or she:

  • wishes to take the additional paternity leave to care for the child;
  • is the child's father, or is married to, the civil partner or partner of the child's mother, or is married to, the civil partner or partner of the primary adopter and has been matched with the child; and
  • has, or expects to have, responsibility for the child's upbringing.

The mother or primary adopter will have to provide a declaration to the father or partner's employer stating:

  • his or her name and address;
  • the date that he or she intends to return to work;
  • his or her national insurance number;
  • that the father or partner satisfies the conditions set out in the employee declaration;
  • that, in respect of a birth child, the father or partner is, to the mother's knowledge, the only person exercising the entitlement to additional paternity leave; and
  • that he or she consents to the father or partner's employer processing the information set out in the declaration.

Taking additional paternity leave

Additional paternity leave will have to be taken in one continuous block and in multiples of complete weeks. The minimum period of leave will be two weeks and the maximum period 26 weeks.

The earliest that a father or partner will be able to take leave will be eight weeks after he or she gives notice of his or her intention to take it, and 20 weeks after the child is born or placed for adoption.

Additional paternity leave will have to be taken by the child's first birthday or within the first year of adoption.

The father or partner will not have to take additional paternity leave immediately after the mother or primary adopter's maternity or adoption leave ends. A gap is permitted to provide greater choice and flexibility for the family.

Death of the mother or primary adopter

If the child's mother dies within 12 months of the birth, or the primary adopter dies within 12 months of the child being placed for adoption, the father or partner will be able to cancel or vary the start and end dates of his or her additional paternity leave. The minimum period of leave that he or she will be able to take will still be a block of two weeks. However, he or she will be able to take up to 12 months' leave ending with the child's first birthday, or within 12 months of the adoption.

If the father or partner has already taken a period of additional paternity leave before the mother or primary adopter's death, and has already returned to work, he or she will not able to take another period of leave, even if this falls with the 12-month period.

Payment

A father or partner who takes additional paternity leave may be entitled to receive additional statutory paternity pay for some of the leave period depending on how much maternity allowance, statutory maternity pay or statutory adoption pay the mother or primary adopter received during his or her maternity or adoption leave.

If the mother or primary adopter was not eligible for maternity allowance, statutory maternity pay or statutory adoption pay, the father or partner will not be eligible to receive additional statutory paternity pay. However, provided that the mother or primary adopter qualified for payment during his or her leave and has at least two weeks' entitlement to that payment left by the time he or she returns to work, the father or partner may be entitled to receive some additional statutory paternity pay at the prescribed standard rate of statutory maternity and adoption pay. For example, if the mother received 26 weeks' statutory maternity pay before returning to work, the father would be entitled to receive 13 weeks' additional statutory paternity pay if he started his additional paternity leave immediately after the mother returned to work.

Qualifying for additional statutory paternity pay

To qualify for additional statutory paternity pay, the father or partner must satisfy eligibility criteria, which largely replicate those for ordinary statutory paternity pay (formerly statutory paternity pay). In other words, he or she must:

  • be the child's father or be married to, the civil partner or partner of the child's mother in the case of births, and, in the case of adoptions, be married to, the civil partner or partner of the primary adopter, and have been matched with the child for adoption;
  • have, or expect to have, responsibility for the upbringing of the child (other than the mother or primary adopter's responsibility);
  • be continuously employed by his or her employer for at least 26 weeks ending with the 15th week before the EWC, or the week in which he or she was notified of the match for adoption;
  • remain continuously employed until the week before the additional statutory paternity pay period begins;
  • have received normal weekly earnings that are not below the lower earnings limit for national insurance contributions during the eight-week period ending with the 15th week before the EWC or the week in which he or she was notified of the match for adoption; and
  • intend to care for the child or support the mother in caring for the child.

Keeping-in-touch days

Fathers or partners who take additional paternity leave will have the same right as mothers and adopters on maternity or adoption leave to keeping-in-touch days. They will be able to spend up to 10 days at work, whether carrying out normal duties or undertaking training, without bringing their leave or pay to an end.

Next week's article will be a case study on additional paternity leave and pay and will be published on 12 April.

Kath Sadler-Smith (kath.sadler-smith@osborneclarke.com) is a senior associate with Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.