Legal Q&A: Additional paternity leave

Sarah Keeble, employment partner, Olswang, looks at the outline details of the Additional Paternity Leave and Pay scheme, whereby mothers will, in effect, be able to transfer some of their statutory maternity leave and pay to the child's father or their partner.

The government has published outline details of its Additional Paternity Leave and Pay scheme, whereby mothers will, in effect, be able to transfer some of their statutory maternity leave and pay to the child's father or their partner.

Q What is the proposed new right?
A An employed father or partner of a mother (or adopter) will be able to take up to 26 weeks' additional paternity leave (APL) to care for a child. Leave must be taken in one block and there will be a minimum period of leave. As with maternity leave, there will be length-of-service eligibility requirements and the government is consulting on what these should be.

Q When can APL be taken?
A APL cannot start until 20 weeks after the birth of a child. The mother must have returned to work for the father to be eligible for APL. This will prevent any overlaps with the mother's statutory maternity pay, maternity allowance or statutory adoption pay. The government is consulting on what will constitute a 'return to work'. For example, a mother may wish to take parental leave (or another form of leave) when her maternity entitlements end. The government is also consulting on the possibility of allowing gaps between a mother returning to work and a father taking up his entitlement for APL where, for example, a mother wishes to take annual leave at the end of her maternity leave.

APL must be taken before the child's first birthday and is in addition to the current ordinary paternity leave entitlement that a father or partner has (ie, two weeks taken within the eight weeks following the birth).

Q Will fathers be eligible for Additional Statutory Paternity Pay?
A Yes. In addition to the current statutory paternity pay entitlement (currently 106 per week or, if less, 90% of father's average earnings) the father will be able to receive Additional Statutory Paternity Pay (ASPP) from their employer, at the same rate, for the duration of their APL. Employers will be able to reclaim approximately 92% of this pay via the PAYE system. Small employers may recover 104.5%.

To qualify for ASPP, the mother or adopter must have some of her entitlement to Statutory Maternity Pay (SMP), maternity allowance or statutory adoption pay left at the time of her return to work. Note that the SMP pay period will be increasing from six to nine months from April 2007.

Q What about 'keeping in touch days'?
A Mirroring its proposals for maternity leave, the government intends to introduce 'keeping in touch days' to allow a father to work a limited number of days during his APL without losing his right to pay or triggering the end of his leave. This aspect will be subject to a separate consultation.

Q What terms and conditions of employment will apply during APL?
A The proposal is that a father's rights while taking APL will be equivalent to the rights enjoyed by women taking either ordinary maternity leave (normal terms and conditions, except relating to remuneration) or additional maternity leave (contract continues but employee is only entitled to certain benefits and subject to certain burdens). The government is consulting further on this point.

Q Will there be any administrative burdens for employers?
A Yes. The government recognises that the new scheme will probably involve potential administrative headaches for employers, particularly as the father's employer will need access to sufficient information to check the father's eligibility and this, in turn, will depend on proof of the mother's entitlement. The government proposes that the mother's employer will provide certification of the latter, but is consulting on the precise process.

Q Will there be any sanctions under the new scheme?
A Yes. The government is consulting on the sanctions that should be imposed for failure to provide information and comply with notice periods so as to prevent employees abusing/seeking to abuse the system.

Q Will there be a large take-up of the new right?
A Government research indicates that initial take-up of this new right is likely to be modest - between 10,000 and 16,000 fathers per year, depending on the eligibility requirements ultimately introduced. However, the scheme is likely to be very attractive for parents where the mother earns substantially more than the father as she will be able to return to work at her higher salary while the father stays at home with the child and receives some income in the form of ASPP.