Additional paternity leave

The right to additional paternity leave came into force in April 2010, and affects the parents of children with a due date on or after 3 April 2011. Essentially it allows the mother of a child to "donate" some of her maternity leave entitlement to the father, who can then take up to 26 weeks off work to care for the child.

This article focuses on the provisions relating to birth children, but adoptive parents are also entitled to take additional paternity leave, and the provisions in relation to adoption largely mirror those for birth.

Introduction

It had been a long-term aim of the previous Labour Government to encourage fathers to take a more active role in their children's upbringing, and to enable both fathers and mothers to obtain a better balance between their family responsibilities and their working life. Statutory paternity leave was introduced in 2002, but was limited to two weeks' leave paid at the lower rate applying to statutory maternity pay (£124.88 from 4 April 2010).

The Work and Families Act 2006 introduced a right to take up to 26 weeks of additional paternity leave. This (as the name suggests) is in addition to, rather than a replacement for, the original two-week paternity leave entitlement, which is now referred to as "ordinary paternity leave".

Whereas ordinary paternity leave is designed to be taken immediately after the birth of a child, when the mother is still on maternity leave, additional paternity leave is an extended period of leave to be taken where the mother has returned to work. Because it must be taken during the first year of the child's life, full entitlement to additional paternity leave can be taken only where the mother has returned to work early. Essentially the mother can donate up to 26 weeks of her untaken maternity leave to her partner for her partner to take care of the child.

The bulk of the provisions on additional paternity leave are set out in the Additional Paternity Leave Regulations 2010 (SI 2010/1055), with the details about payment of additional statutory paternity pay set out in the Additional Statutory Paternity Pay (General) Regulations 2010 (SI 2010/1056). Both sets of Regulations came into force on 6 April 2010.

Qualification for the right to additional paternity leave

The new right to additional paternity leave applies only in relation to children whose expected week of birth begins on or after 3 April 2011 (reg.3(1) of the leave Regulations). What matters is when the expected week of birth is, rather than the actual week of birth. Where a child is expected on, say, 5 April 2011, but is actually born on 31 March 2011, the new regime will still apply.

Part of the new right consists of protection from dismissal or detriment as a result of qualifying for, or exercising the right to take, additional paternity leave (regs.33 and 34). Obviously there is a danger that an individual could be victimised on this ground before the child is born, so reg.3(3) provides that claims on this basis can relate to any dismissal or detriment occurring on or after 6 April 2010.

Entitlement to additional paternity leave

Only employees, as opposed to workers, are entitled to take additional paternity leave. An employee is entitled to take additional paternity leave only if the purpose in so doing is to care for the child in question (s.80AA(1) of the Employment Rights Act 1996). Thus an employee who sought to take additional paternity leave because of other family responsibilities, such as the need to care for an elderly parent, would not be entitled to take the leave.

To qualify for additional paternity leave, an employee must also have at least 26 weeks' service with the employer as at the end of the 15th week before the child's expected week of birth (reg.4(2)(a) of the leave Regulations). Further, the employee must remain in employment with the employer until the week before the first week of additional paternity leave (reg.4(2)(b)).

The employee must be either the father of the child, or the spouse, partner or civil partner of the child's mother (reg.4(2)(c)). A partner is someone of either sex who lives with the mother in an "enduring family relationship" but is not her parent, grandparent, sibling, aunt or uncle.

The employee must also have, or expect to have, the main responsibility (apart from any responsibility of the mother) for the child's upbringing (reg.4(2)(d)).

The following examples illustrate how these requirements work.

  • If A is the father of the child but does not live with the mother, A will qualify for additional paternity leave provided that there is no one else (apart from the mother) who will have the main responsibility for the child's upbringing.
  • If A is the father of the child, but the mother is now living with a new partner who will share in her responsibility for the child's upbringing, A will not be entitled to additional paternity leave.
  • If A is married to the mother but is not the biological father of the child, A will be entitled to additional paternity leave, provided that he expects to have the main responsibility for the child's upbringing, along with the mother.
  • If A is the same-sex partner of the mother, and expects to share the main responsibility for the child's upbringing with the mother, A will qualify for additional paternity leave while the biological father of the child will not.

For an individual to qualify for additional paternity leave, the mother must also meet some conditions. She must be entitled to one or more of maternity leave, statutory maternity pay and maternity allowance, and must have returned to work (reg.4(5)).

Only one period of additional paternity leave can be taken, regardless of how many children are born as a result of the same pregnancy (reg.4(6)).

Duration of additional paternity leave

An individual entitled to additional paternity leave may take between two weeks' and 26 weeks' leave. The leave must be taken in multiples of a week and must be taken as one continuous period. It cannot begin until at least 20 weeks after the birth of the child and must be completed within 12 months of the birth (reg.5 of the leave Regulations). If the employee is dismissed after the additional paternity leave has begun, the additional paternity leave ends at the time of the dismissal (reg.29).

Notice of additional paternity leave

The most onerous requirements placed on an employee seeking to take additional paternity leave are the requirements to give the employer full and adequate notice of the fact. At least eight weeks before the additional paternity leave start date, the employee must give the employer: a leave notice; an employee declaration; and a mother declaration.

The leave notice: The leave notice identifies the child's expected week of birth, the actual date of birth and the dates that the employee has chosen as the additional paternity leave start and end dates.

The employee declaration: This is a signed declaration from the employee stating that the purpose of the leave will be to care for the child, and that he or she:

  • is the child's father, or the spouse, partner or civil partner of the child's mother; and
  • has, or expects to have, the main responsibility (apart from any responsibility of the child's mother) for the child's upbringing.

The mother declaration: This is a written declaration from the mother stating:

  • her name, address and national insurance number;
  • the date on which she intends to return to work;
  • that the employee is the child's father, or her spouse, partner or civil partner, and has, or expects to have, the main responsibility (apart from any responsibility she has) for the child's upbringing;
  • that, to her knowledge, the employee is the only person claiming additional paternity leave in respect of the child; and
  • that she consents to the employer processing the information in her declaration.

On receipt of the employee's leave notice, the employer may, within the next 28 days, request that the employee provide a copy of the child's birth certificate and/or the name and address of the mother's employer (or business address if she is self-employed) (reg.6(3) of the leave Regulations). Where the employer exercises this option, the employee must provide the information within 28 days of the request.

The policy behind these provisions is that the parents of the child should "self-certify" their entitlements in relation to additional paternity leave. One option for the Government would have been to place a duty on the mother's employer to confirm, for example, her return to work. However, it was felt that this would create too much red tape for organisations and could also raise problems of confidentiality and data protection. Some employers may be concerned that the self-certification system is open to abuse. However, an employer that suspects that a false claim is being made will have enough information to verify the details given by the employee and the mother. Making a false claim would clearly amount to gross misconduct, and would also be likely to amount to fraud.

Response to notice of additional paternity leave

Where the employee has given notice of leave, the employer must, within 28 days of receipt of the notice, confirm the relevant dates of additional paternity leave to the employee in writing (reg.8 of the leave Regulations). If it does not, this will impact on the employer's ability to prevent the employee returning early from paternity leave where the employee has not given the required notice (reg.30(6)).

The employer must acknowledge any varied notice of the start date in the same way.

Withdrawal from additional paternity leave

Where, after notice of additional paternity leave has been given, the employee's circumstances change so that the employee stops being the mother's spouse, partner or civil partner, or no longer expects to have responsibility for the child's upbringing (or the employee discovers that he is not the child's father after all), as soon as practicable, the employee must give the employer a "withdrawal notice" (reg.6(4)).

If the withdrawal notice is given less than six weeks before the additional paternity leave is due to start, and it is not reasonably practicable for the employer to accommodate the change in the employee's arrangements, the employer can require the employee to take a period of additional paternity leave. This will start on the date specified in the employee's leave notice and end no later than whichever is sooner of six weeks after the withdrawal notice was given and the end date specified in the leave notice. This could arise, for example, where the employer has already deferred work or engaged a replacement employee to cover the employee's expected absence. Such leave will be deemed additional paternity leave even though the employee technically no longer qualifies for it (reg.6(5) and (6)).

Where the employer requires the employee to take leave in this way, it must notify the employee of the dates of the leave as soon as reasonably practicable, and in any event before the start of the leave (reg.8(2)).

Where the employee has given the withdrawal notice after the beginning of the additional paternity leave period, and it is not reasonably practicable for the employer to accommodate the change in the arrangements, the employer can require the employee to remain on additional paternity leave. This will end no later than six weeks after the date on which the employee gave the employer the withdrawal notice, or on the end date specified in the employee's leave notice, whichever occurs first. Such leave will be deemed additional paternity leave even though the employee technically no longer qualifies for it (reg.6(7) and (8)).

Death of the mother

The general scheme of additional paternity leave assumes that the mother has returned to work from maternity leave. However, the Regulations also provide for additional paternity leave to be taken in cases where the child's mother has died. In these circumstances, the rules are amended to provide that additional paternity leave can be taken provided that the mother would have been entitled to maternity leave, maternity pay or maternity allowance but for the fact that she has died (reg.10 of the leave Regulations).

The options that an employee has for taking additional paternity leave are also amended when the mother has died (reg.11). Additional paternity leave can be taken at any time from the mother's death up to 12 months after the child's birth. The minimum period of leave that can be taken is two weeks and the maximum is 52 weeks, thus allowing the employee to take up to a year of additional paternity leave where the mother has died during childbirth.

The employee must give the employer notice of the additional paternity leave "as soon as reasonably practicable" after the mother's death, and in any event no later than eight weeks after the death (reg.12). The leave notice must specify the child's expected week of birth and actual date of birth, and set out the dates for the start and end of additional paternity leave that the employee has selected. The employee must also make a written declaration to the employer that the purpose of the leave will be to care for the child and that he or she satisfies the eligibility criteria for additional paternity leave (that the employee is the child's father or would have been the spouse, partner or civil partner of the child's mother, had it not been for her death). The declaration must also set out the mother's name and last address, her national insurance number and the date of her death. If requested to do so, the employee must provide the employer with a copy of the child's birth certificate and the name and address of the mother's employer.

Early return to work from additional paternity leave

If the employee intends to return to work earlier than the date notified to the employer, the employee must give the employer at least six weeks' notice of the return date (reg.30 of the leave Regulations). If the employee attempts to return without giving such notice, the employer is entitled to delay the return so as to ensure that it has actually had six weeks' notice of the employee's return.

This does not apply where the employer has failed to confirm the employee's paternity leave dates in writing, within 28 days of receipt of the notice to take paternity leave, as required by reg.8.

Work during additional paternity leave

In line with recent changes made to the rules on maternity leave, reg.26 of the leave Regulations provides that employees may carry out up to 10 days' work for their employer during the additional paternity leave period without bringing the leave to an end. Any work done on a day counts as one day's work, and work can include training or any activity undertaken for the purposes of keeping in touch with the workplace. Reasonable contact from time to time between the employer and the employee does not bring the additional paternity leave period to an end, thus allowing for discussions about news from the workplace or conversations about the employee's return to work.

Terms and conditions during additional paternity leave

All of an employee's terms and conditions of employment are preserved during additional paternity leave, except those relating to the payment of wages and salary (reg.27 of the leave Regulations).

Redundancy during additional paternity leave

Regulation 28 of the leave Regulations sets out a special right for an employee to be offered alternative work if his or her position becomes redundant during additional paternity leave. Regulation 28 provides that, where there is a suitable alternative vacancy, the employee is entitled to be offered alternative employment under a new contract of employment that is not substantially less favourable than the old one. This mirrors the right of redundant employees on maternity and adoption leave to be offered any suitable vacancy.

The right to return to work after additional paternity leave

In almost all cases, an employee who takes additional paternity leave will be entitled to return to the job in which he or she was employed before the leave began, with seniority intact and on terms and conditions no less favourable than those that would have applied but for the absence on additional paternity leave (reg.31 of the leave Regulations).

If, however, the additional paternity leave follows on immediately from a period of additional maternity or adoption leave, or a period of more than four weeks' parental leave, and it is not reasonably practicable for the employer to permit the employee to return to the same job, the employer can provide the employee with a suitable alternative job.

Employment protection

Under regs.34 and 35 of the leave Regulations, an employee is protected from detriment, dismissal or selection for redundancy on the basis that he or she took, or sought to take, the benefits of additional paternity leave, or because the employer believed that he or she was likely to take additional paternity leave. It is also unlawful for an employer to dismiss or subject to a detriment an employee who does not return from additional paternity leave on time where the employer has failed to notify the employee of the date of the end of the leave and it is reasonable for the employee to believe that it has not ended. The same applies where the detriment or dismissal is based on the employee's refusal to agree to undertake work (keeping-in-touch days) during the additional paternity leave period.

Additional statutory paternity pay

The Additional Statutory Paternity Pay (General) Regulations 2010 set out the circumstances in which an employee taking additional paternity leave will qualify for paternity pay. In addition to the requirements set out previously to qualify for additional paternity leave, reg.4 of the pay Regulations provides that the employee must be an employed earner earning at least the national insurance contributions lower earnings limit (£97 from 6 April 2010) for the eight weeks ending with the 15th week before the expected week of birth. The mother of the child must be entitled to either maternity allowance or statutory maternity pay, and must have returned to work not less than two weeks after the birth of the child, but at least two weeks before the end of her maternity allowance period or maternity pay period (reg.6).