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Additional paternity leave regulations in force this month, but only where baby is due on or after 3 April 2011

07 April 2010

Employers have just under a year to prepare for the extension to statutory paternity leave and pay. Our Q&As provide a starting point.

When will the new rights come into force?

Although the relevant regulations came into force on 6 April this year, the new right will only apply in respect of babies due (or children placed for adoption) on or after 3 April 2011.

How much extra leave will fathers be entitled to?

Currently, fathers are entitled to just two weeks statutory paternity leave. This will be extended so that eligible employees will also be able to take up to 26 weeks additional paternity leave (APL) for the purpose of caring for a child under one.

Is it just fathers who will be entitled to additional paternity leave?

No. The new regulations will also apply to adoptive parents who are notified that they have been matched with a child after 3 April 2011 (the primary adopter will be entitled to take adoption leave which mirrors maternity leave).

Where the employee is married to, or is the same sex civil partner of, the child's mother but is not the child's father, they will also be entitled to take leave if they expect to have the main responsibility for bringing up the child.

When will fathers be able to take additional paternity leave?

It is important to note that APL can only be taken once the mother of the child has returned to work so that a mother and father will not be able to take maternity leave and APL at the same time.

The earliest APL will be able to start is when the child is 20-weeks-old or when the child has been with its adoptive parents for 20 weeks.

Are all employees eligible to take additional paternity leave?

No. To be eligible an employee must have been continuously employed for 26 weeks before the ‘relevant week’. The relevant week is the week immediately before the 14th week before the baby is due.

How much notice must an employee give if they wish to take additional paternity leave?

An employee must give eight weeks' written notice before taking paternity leave.

Does the leave have to be taken in one go?

Yes. The leave must be taken in multiples of complete weeks and must be taken as one continuous period.

The minimum period of leave which may be taken is two consecutive weeks and the maximum period is 26 weeks.

When will someone taking additional paternity leave be entitled to receive statutory paternity pay?

Mothers are currently entitled to take up to 52 weeks maternity leave. Statutory maternity pay (SMP) is available during the first 39 weeks of this leave (assuming certain conditions are met).

A father will only be entitled to be paid at a flat rate that is equivalent to SMP (from April 2010 £124.88 a week) during APL if they take the leave during what would have been the mother's paid maternity leave period. Certain other eligibility requirements will also apply.

How will employers be required to administer the new right?

The Government promised it would adopt a 'light-touch' when applying the new right, and so the system will rely heavily on self-certification by the parents as regards eligibility.

An employee wishing to take APL will have to give the required notice and various pieces of information to their employer including a declaration from the mother setting out their name, address and National Insurance number and the date on which they intend to return from maternity leave.

The mother must also confirm that the employee proposing to take APL is the only person exercising the right to APL in respect of the child. An employer will then, if they wish, be able to request a copy of the child's birth certificate and the name and address of the mother's employer.

Where can employers get more information?

The Government has said it will put guidance on the new rights in place before 3 April 2011. Guidance for employees will be put on www.direct.gov.uk and that for employers on www.businesslink.gov.uk and www.hmrc.gov.uk

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