Paternity leave and pay

Topic Index
Overview
Paternity leave - birth
Paternity leave - adoption
Rights during paternity leave
Statutory paternity pay
Additional paternity leave and pay
Resources

Overview

Qualifying employees are entitled to 2 weeks' paid paternity leave.
It is available for the birth of a child or the placement of a child for adoption.
There are 2 types of paternity leave available to employees: paternity leave (birth) - available to a child's biological father or the mother's husband or partner (which includes a female partner), and paternity leave (adoption) - available to both men and women who are married to or the partner or civil partner of the child's adopter.
The employee can choose to take either 1 week or 2 consecutive weeks' paternity leave and can choose to start his/her leave either on the date of the child's birth or placement with the adopter; or a number of days after the child's birth or placement; or on a predetermined date which must be later than the start of the expected week of childbirth (EWC) or the date of placement.
Only one period of leave is available irrespective of whether more than one child is born as a result of the same pregnancy or more than one child is placed at the same time.
For parents of children due on or after 3 April 2011, mothers can transfer all or part of the last 26 weeks of their maternity leave to the father.

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Paternity leave - birth

To qualify for paternity leave (birth) the employee must:
- have at least 26 weeks' continuous employment ending with the 15th week before the EWC
- have or expect to have responsibility for the child's upbringing and
- give notice to the employer of his intention to take paternity leave
Paternity leave must be taken within 56 days of the child's actual birth or, if the child is born early, between the date of the child's birth and up to 56 days after the first day of the EWC.
The employee must notify the employer by the end of the 15th week before the EWC or as soon as is reasonably practicable that he intends to take paternity leave. The notice, in writing if the employer requests, must confirm the EWC, the length of paternity leave he has chosen to take (1 week or 2) and the date on which he intends his paternity leave to begin.
The employer can ask that the employee sign a declaration that the purpose of his absence from work is to care for the child or support the child's mother and that he is either the child's father or the mother's husband/partner and has/expects to have responsibility for the child's upbringing.
An employee who has notified the employer of the date on which his paternity leave is to start may subsequently vary that date provided he gives at least 28 days' notice or, if that is not reasonably practicable, as soon as is reasonably practicable.

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Paternity leave - adoption

To qualify for paternity leave (adoption) the employee must:
- have at least 26 weeks' continuous employment ending with the week in which the child's adopter is notified of having been matched with the child
- be either married to or the partner of the child's adopter
- have or expects to have responsibility for the child's upbringing, and
- give notice to the employer of his/her intention to take paternity leave
Paternity leave must be taken within 56 days of the date on which the child was placed with the adopter.
The employee must notify the employer, within 7 days of the date on which the adopter is notified of being matched with a child, that he/she intends to take paternity leave, or as soon as is reasonably practicable.
This notice, in writing if the employer requests, must confirm the:
- date on which the adopter was notified of having been matched with the child
- date on which the child is expected to be placed with the adopter
- length of paternity leave the employee has chosen to take
- date on which the employee intends his/her paternity leave to begin
The employer can request that the employee sign a declaration that the purpose of his/her absence from work is to care for the child or support the child's adopter and that he/she is either married to or the partner or civil partner of the child's adopter and that he/she has or expects to have responsibility for the child's upbringing.
An employee who has notified the employer of the date on which his/her paternity leave is to start may subsequently vary that date provided he/she gives at least 28 days' notice or if that is not reasonably practicable, as soon as is reasonably practicable.

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Rights during paternity leave

An employee on paternity leave is entitled to all their contractual benefits and all terms and conditions of employment remain the same with the exception of pay.
An employee is legally protected from suffering unfair treatment or dismissal for taking (or trying to take) paternity leave.
An employee who has taken paternity leave (whether birth or adoption) is entitled to return to the job in which they were employed before their absence on no less favourable terms and conditions. Seniority, pension rights and similar rights must be retained.
If the employee returns to work and takes up a part-time position the impact of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 needs to be considered.
Working parents (which includes the child's father or the spouse/partner/civil partner of the child's mother or adopter) of children aged under 17 (or 18 in the case of disabled children) may also have the right to request flexible working patterns.

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Statutory paternity pay

Statutory paternity pay (SPP) is payable for the paternity leave period (whether birth or adoption) at £128.73 (from April 2012: £135.45) or 90% of his/her average weekly earnings, whichever is the lower provided his/her earnings average at least the lower earnings limit for national insurance (£102 a week; £107 a week from April 2012).

Paternity pay - birth

An employer will be liable to pay statutory paternity pay (SPP) provided the employee:
- is the father of the child or either married to or the partner or civil partner of the child's mother and has or expects to have responsibility for the child's upbringing
- has been continuously employed for 26 weeks by the end of the 15th week before the EWC and remains in the employer's employment from this time until the date of the child's birth
- has given to the employer at least 28 days before the date chosen as the start of the SPP period (or as soon as is reasonably practicable) written evidence of his/her entitlement to SPP by providing the employer with a self certificate which includes a declaration that they meet the eligibility conditions and stating the week the baby is due, whether they wish to take 1 or 2 weeks' leave, and when they want their leave to start

Paternity pay - adoption

An employer will be liable to pay statutory paternity pay (SPP) provided the employee:
- is married to or the partner or civil partner of the child's adopter and has or expects to have responsibility for the child's upbringing
- has been continuously employed for 26 weeks by the end of the week in which the child is matched for adoption and remains in the employer's employment from this time until the date on which the child is placed for adoption
- has given to the employer at least 28 days before the date chosen as the start of the SPP period (or as soon as is reasonably practicable) written evidence of his/her entitlement to SPP by providing the employer with a self certificate which includes a declaration that they meet the eligibility conditions and stating the date the child is expected to be placed for adoption, whether they wish to take 1 or 2 weeks' leave, and when they want their leave to start

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Additional paternity leave and pay

Mothers can transfer up to 6 months of their maternity leave to the father when they return to work – additional paternity leave (APL).
Similar provisions apply to adoptive parents. In the case of adoption, the entitlement will be given to people who have been matched with a child for adoption and who are spouses of partners (of either sex) of the adopter who has elected to take adoption leave.
The definition of ‘father’ includes the biological father of the child or one of a jointly adopting couple or the spouse, civil partner or partner of the mother or an adopter.
Fathers must be responsible for the upbringing of the child and be taking the leave to undertake caring responsibilities.
Fathers must have continuous service with their employer of at least 26 weeks by the 15th week before the baby is due or by the date the child is matched for adoption.
APL is not available for 20 weeks from birth or adoption, other than where the mother/adopter dies. It must be completed by the child’s first birthday.
At least 8 weeks’ notice of start of APL must be given to the father’s employer.
The minimum APL that the father can take is 2 weeks and leave must be taken in a continuous block.
The mother or adopter must have returned to work and stopped receiving maternity or adoption pay (though not necessarily having exhausted such pay).
The mother must report the start of her maternity or adoption pay to the father’s employer to enable it to calculate entitlement.
The father’s employer must confirm to the father the dates of the start and end of leave within 28 days of receiving notice from the employee.
Any unclaimed statutory maternity or adoption pay is available to the father as Additional Statutory Paternity Pay (ASPP), subject to the lower earnings limit. This is payable at the same rate as Statutory Maternity Pay (£128.73; from April 2012, £135.45).
Gaps between the end of maternity/adoption leave and the start of additional paternity leave are allowed.
During APL, the father is entitled to benefit from the same terms and conditions of employment as existed prior to taking leave, save for pay - in the same way that the mother’s terms are protected during maternity or adoption leave. Similarly, fathers are entitled to return to their former jobs at the end of APL or, if this is not reasonably practicable, to a suitable and appropriate job.
Fathers are also entitled to take up to 10 keeping in touch (KIT) days without bringing the leave to an end.
The APL regulations will be kept in place until a new system of flexible parental leave can be introduced.

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Resources

The Policies and Documents section contains a paternity leave application form and a paternity leave (and parental leave) policy and procedure (subscribers only).

ACAS