Legal Q&A: Additional paternity leave

Kate Holbrook, associate, Dechert, addresses the legal issues of the extension of paternity leave.

As part of its "family-friendly" drive, in 2004, the government announced its plans to allow mothers to pass a portion of their maternity leave and pay to fathers. The government wanted to enable fathers to play a greater role in the first year of a child's life and to give families greater flexibility to determine how they care for their children.

It had been thought that the economic slump might have put this proposal on the back burner. However, the government recently announced that these proposals would be brought forward, and that it will shortly start consultation on the detail of the new regulations.

Q How will additional paternity leave work in practice?

A Families of babies who are born on or after 3 April 2011 will be able to choose whether the mother should forfeit up to six months' maternity leave, which can then be taken by the father as additional paternity leave (APL). APL will be in addition to the current entitlement to two weeks' statutory paternity leave.

Q Which fathers will be eligible to take APL?

A The father must first be eligible to take normal statutory paternity leave - ie he must:

• Be the child's father or be married to, or be the civil partner of, or be the partner of, the child's mother;
• Have, or expect to have, responsibility for the child's upbringing;
• Be continuously employed by the employer for at least 26 weeks at the 15th week before the expected week of the child's birth; and
• Be taking the leave to care for the child or support the child's mother in her caring for the child.

For a father to take APL, the mother must have returned to work and forfeited a portion of her maternity leave. The effect of this requirement will be that a mother and father cannot take maternity leave and APL at the same time.

Q Will the APL have to be taken in one go?

A Like maternity leave, APL must be taken in a single, continuous block. The minimum period of APL will be two weeks and the maximum will be 26 weeks. The government is likely to allow parents to take a gap between maternity leave ending and APL starting.

Q What will be the rate of pay?

A It is proposed that the rate of pay will be the same as statutory paternity pay (ie the lesser of the prescribed rate or 90% of the father's normal weekly earnings). The mother and father will, together, be entitled to statutory maternity pay (SMP)/statutory paternity pay (SPP) for 39 weeks. For example, if the mother takes 26 weeks' ordinary maternity leave and forfeits her right to additional maternity leave, the father would receive SPP for the first 13 weeks of APL.

Q What proof of fatherhood will employers be able to demand?

A The main concern for businesses at the moment appears to be the burden of administering APL. So the government's plan is for parents to "self-certify' their eligibility for APL to the father's employer. This is likely to involve the father signing a declaration confirming that he is eligible for statutory paternity leave and APL. The mother would also sign the same declaration to confirm when she intends to return to work. The father's employer will be able to request details from the mother's employer.

To help combat the risk of fraud, it is proposed that HM Revenue and Customs would conduct compliance checks and financial penalties would be imposed on those who abuse the system.

Q How much notice will fathers need to give?

A Fathers are likely to have to give eight weeks' notice to their employer of their intention to take APL. No doubt this is intended to mirror the length of notice that a mother has to give if she intends to return to work early. However, this is significantly less than the 15 weeks' notice that a mother normally gives to her employer about her intention to take maternity leave, and leaves employers of fathers with little time to make necessary arrangements for cover.

Q How will APL affect fathers' terms and conditions of employment?

A APL will work in the same way as AML in that terms and conditions, except for remuneration, will continue and the father will be entitled to return to the same job on the same terms and conditions at the end of APL. Fathers are also likely to be able to take keeping-in-touch days during APL.