Additional paternity leave and pay proposals
Following consultations throughout 2005, the government has put forward important proposals for the extension of rights in relation to paternity leave and pay.
At present, a qualifying employee is entitled to take either one or two weeks' paid paternity leave, following the birth or adoption of a child. From now on this will be referred to as ordinary paternity leave (OPL).
The Work and Families Bill, currently making its way through parliament, creates a right to additional paternity leave (APL) and additional statutory paternity pay (ASPP). The details of the scheme are to be set out in regulations, and the government has now issued a consultation document discussing specific aspects of the new rights.
APL and ASPP will work in conjunction with a mother's right to take additional maternity leave (AML)1. Under the proposed scheme, a qualifying father or the partner of a mother who is entitled to AML will be entitled to take up to 26 weeks' APL and receive ASPP2.
The entitlement to APL and ASPP will arise only if the mother has returned to work before the end of her AML, and APL and ASPP will be limited to a period equal to the amount of unused AML and maternity pay.
In effect, therefore, these provisions will allow AML to be shared between two parents. If the mother does not want to take her full maternity entitlement, she can return to work early and essentially pass on her outstanding leave and pay entitlements to the father.
Qualifying for APL and ASPP
The government's aim is to make APL and ASPP available from approximately 26 weeks into the mother's leave. It proposes to achieve this by providing, subject to consultation, that they can be taken only from the time that the child is 20 weeks old.
Currently, in order to qualify for OPL a father must have been continuously employed for 26 weeks as at the 15th week before the expected week of childbirth. In terms of qualifying for APL and ASPP, the government has identified three options on which it is seeking views:
Entitlement extending only to those who qualified for OPL and have continued with the same employer up to the intended date of taking APL. In most cases, this will mean an effective qualifying period of at least 60 weeks as at the time APL begins.
A simple qualifying period of one year's service as at the intended date of taking APL.
A simple qualifying period of 26 weeks' service as at the intended date of taking APL.
The government is also inviting views on any other qualifying period that might be set.
ASPP will be paid at the same rate as statutory ordinary paternity pay (which from April 2006 will be a flat rate of £108.85 per week). Employers will be able to recover 92%3 of the ASPP that they pay through national insurance payment deductions.
Most employees earn enough to qualify for statutory paternity pay - the threshold being set at the lower earnings limit for national insurance contributions. However, a complicated formula for calculating employees' earnings currently operates: this looks at average pay over an eight-week period running up to the 14th week before the expected week of childbirth. The government intends that the lower earnings limit should remain the threshold for qualifying for ASPP, but is seeking views on whether a less complicated formula for calculating earnings should be adopted - such as looking at earnings for just one week.
The mother's return to work
Under the Work and Families Bill, for a father to qualify for ASPP, the mother of the child must be entitled to maternity allowance or statutory maternity pay and must have returned to work without having used up all of her entitlement. The government intends that regulations should also make entitlement to APL subject to the mother returning to work.
The question of what counts as a return to work is the next issue that is up for consultation. The answer is not as obvious as it may seem. An employee may bring her maternity leave to an end and still not actually physically return to work. She may take parental leave or annual holiday, or may be off sick. The government is seeking views as to what circumstances should constitute a return to work - and also on whether any difficulties would be caused if there was potential for a gap between the end of maternity leave and the start of APL.
If the mother dies before the child is one year old, the government proposes to allow the father to take APL up until the child's first birthday. In these circumstances, the leave could begin earlier than the point at which the child was 20 weeks old, so the father could be entitled to more than 26 weeks' leave.
Contractual position during leave
A father on additional paternity leave will be able to work for the same number of "keeping-in-touch days" as a mother on maternity leave (see Maternity, adoption and flexible working proposals).
The government also proposes that the contractual rights during APL, and the right to return to work, should mirror the rights of an employee on maternity leave. However, it is seeking views as to whether the contractual rights of an employee taking APL should be in line with the more extensive rights of a woman on ordinary maternity leave (OML) or with the much more restricted contractual entitlement applicable during AML.
A similar question is asked as regards returning to work. A woman returning from OML is entitled to return to the same job that she had before her leave. However, if she is returning from AML, the employer can offer suitable alternative work if the original job is no longer available. The government is consulting on which approach would best suit a return to work from APL.
Notification requirements
The government's proposal is that the father should self-certify his entitlement to APL. However, views are sought as to whether he should also be obliged to provide evidence of the birth of the child - such as a copy of the birth certificate.
The government suggests that eight weeks' notification of APL should be given, but is requesting views on when other information that is necessary for administrative purposes should be provided. It is also seeking views on the consequences of a failure by the father to give proper notification or provide the appropriate supporting documentation.
The father's employer will need confirmation from the mother's employer that she has given notice of her early return to work, and of the amount of leave and pay that she has outstanding. Formal confirmation that she has in fact returned to work may also be required. The government is consulting about the details of the information needed, and also about whether the employer should be required to provide the information directly to the father's employer or whether the mother should be responsible for obtaining the information and passing it on.
Views are also being sought as to what arrangements should apply when employees change their plans after notifying the employer of their intention to return early, or to take APL.
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Document: Choice and flexibility - additional paternity leave and pay The questions: The consultation is seeking views on 18 specific questions: What is the minimum length of time a father should have worked for his employer before he can qualify for APL?
How should the weekly rate be calculated for ASPP?
What period should be used as the basis for the calculation of average weekly earnings?
What circumstances should constitute a mother returning to work?
Is setting the earliest point at which APL and ASPP can be taken at 20 weeks from the child's birth the most appropriate way of reserving the period after the child's birth for the mother?
Should the rules allow for a gap between the end of maternity leave and the beginning of APL and ASPP?
Are there any circumstances when a gap in leave or pay should not be allowed?
Should the situations outlined in the consultation in relation to a mother dying be included in the regulations?
Should the number of keeping-in-touch days for a father on APL be the same as those for a woman taking maternity leave and pay?
Should a father who is taking APL and ASPP be entitled to the benefit of his terms and conditions to the same extent as a mother who is on OML, or a mother who is on AML?
Should a father who is taking APL and ASPP be entitled to the same right of return as a mother returning after OML, or a mother returning after AML?
Should all the information required for administration purposes be provided before the eight-week notification point?
Should the same sanctions that apply with regard to OPL apply to a father wishing to take APL and ASPP?
If a mother's employer is required to check and certify a statement completed by the mother or to provide information, should any sanctions be in place if it does not comply?
In what format should the father's notification and the information about the mother's pay entitlement, etc be presented to the father's employer?
How should the information be routed from the mother's employer to the father's employer in a way that recognises employers' burdens and potential for abuse?
Is there a case for it to be mandatory for a father to provide evidence to his employer of the baby prior to APL or ASPP being taken?
What conditions should apply for fathers wanting to move their APL and ASPP dates either backwards or forwards?
Deadline for responses: 31 May 2006 Responses to be submitted to: Anita Thomas, Employment Relations Directorate, Department of Trade and Industry, Room 3128, 1 Victoria Street, London SW1 H 0ET; tel: 020 7215 5963; fax: 020 7215 0168; email: workandfamilies@dti.gsi.gov.uk. Choice
and Flexibility: Additional Paternity Leave and Pay (PDF format, 158K) Read the consultation in full
on the DTI website. |
1This article refers throughout to a mother taking maternity leave, but it is important to note that the new rights are equally applicable in cases of adoption leave.
2While, for the purposes of simplicity, this article refers throughout to "fathers", it should be noted that the right extends to employees who are the spouse, civil partner or partner of the child's mother.
3Small employers will be able to recover 104.5%.
