EMPLOYMENT LEGISLATION

PATERNITY – LEAVE AND PAY
A basic summary (PL514 Rev 2 August 2005)

Rights to paternity leave and pay were introduced in April 2003. 

This document provides a basic summary of paternity leave and pay.  It does not attempt to describe the detail, and should not be taken as an authoritative statement of the law.

Paternity leave and pay is available to employees following the placement of a child for adoption. See Adoptive parents - rights to leave and pay (PL515) for more details.

Following the birth of a child, the new rights to paternity leave and pay will give eligible employees the right to take paid leave to care for the child or support the mother.  

Eligibility
 

Employees must satisfy the following conditions in order to qualify for paternity leave. They must:

·                     have or expect to have responsibility for the child’s upbringing

·                     be the biological father of the child or the mother’s husband or partner

·                     have worked continuously for their employer for 26 weeks ending with the 15th week before the
            baby is due

Employers can ask their employees to provide a self-certificate (see below for further details) as evidence that they meet these eligibility conditions.

Length of paternity leave
 

Eligible employees can choose to take either one week or two consecutive weeks’ paternity leave (not odd days).

They can choose to start their leave:

·                     from the date of the child’s birth (whether this is earlier or later than expected), or

·                     from a chosen number of days or weeks after the date of the child’s birth (whether this is earlier
            or later than expected), or  

·                     from a chosen date later than the first day of the week in which the baby is expected to be born.

Leave can start on any day of the week on or following the child’s birth but must be completed:

·                     within 56 days of the actual date of birth of the child, or

·                     if the child is born early, within the period from the actual date of birth up to 56 days after the first
            day of the expected week of birth.  

Only one period of leave is available to employees irrespective of whether more than one child is born as the result of the same pregnancy.
 

Statutory Paternity Pay
 

During their paternity leave, most employees are entitled to Statutory Paternity Pay (SPP) from their employers.

Statutory Paternity Pay is paid by employers for either one or two consecutive weeks as the employee has chosen. The rate of Statutory Paternity Pay is the same as the standard rate of Statutory Maternity Pay - from April 2005, this is  £106 a week or 90% of average weekly earnings if this is less than £106.
 

Employees who have average weekly earnings below the Lower Earnings Limit for National Insurance purposes (£82 a week from April 2005) do not qualify for SPP. Employees who do not qualify for SPP, or who are normally low-paid, may be able to get Income Support while on paternity leave. Additional financial support may be available through Housing Benefit, Council Tax Benefit, Tax Credits or a Sure Start Maternity Grant. Further information is available from your local Jobcentre Plus office or Social Security office.

Notice of intention to take paternity leave

Employees must inform their employers of their intention to take paternity leave by the end of the  fifteenth week before the baby is expected, unless this is not reasonably practicable. They must tell their employers:

·                     the week the baby is due

·                     whether they wish to take one or two weeks’ leave

·                     when they want their leave to start.

Employees can change their mind about the date on which they want their leave to start providing they tell their employer at least 28 days in advance (unless this is not reasonably practicable). Employees must tell their employers the date they expect any payments of SPP to start at least 28 days in advance, unless this is not reasonably practicable.
 

Self certificate
 

Employees must give their employers a completed self-certificate as evidence of their entitlement to SPP. A model self certificate for employers and employees to use is available in Working fathers - rights to leave and pay (PL517). Employers can also request a completed self certificate as evidence of entitlement to paternity leave. The self certificate must include a declaration that the employee meets certain eligibility conditions and provide the information specified above as part of the notice requirements.
 

By providing a completed self certificate, employees will be able to satisfy both the notice and evidence conditions for paternity leave and pay. Employers will not be expected to carry out any further checks.
 

Contractual benefits
 

Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise), throughout their paternity leave. However, most employees will be entitled to SPP for this period. If the employee has a contractual right to paternity leave as well as the statutory right, he may take advantage of whichever is the more favourable. Any paternity pay to which he has a contractual right reduces the amount of SPP to which he is entitled.

Return to work after paternity leave

Employees are entitled to return to the same job following paternity leave.

Protection from detriment and dismissal
 

Employees are protected from suffering unfair treatment or dismissal for taking, or seeking to take, paternity leave. Employees who believe they have been treated unfairly can complain to an employment tribunal.

Employers' recovery of payments
 

Employers can recover the amount of Statutory Paternity Pay (SPP) they pay out in the same way as they can claim back Statutory Maternity Pay. Employers can claim back 92% of the payments they make, with those eligible for small employers relief able to claim back 100% plus an additional amount in compensation for the employer’s portion of National Insurance contributions paid on SPP.

In addition, employers who need can get funding in advance for payments of SPP from the Inland Revenue.
 

Other Family Friendly Rights
 

Right to apply to work flexibly

A right for parents of young, or disabled children, was introduced in April 2003Parents of children aged under six, or of disabled children aged under 18,  have the right to apply to work flexibly. Their employers will have a duty to consider such requests seriously. See Flexible working – the right to apply (PL516).

Changes to maternity rights
 

Existing maternity rights were changed in April 2003.  For more information see  Maternity leave – changes (PL507).
 

Rights to paid leave for adoptive parents
 

A right to adoption leave and pay was introduced in April 2005. The right is available to individuals who adopt, or one member of a couple where the couple adopt jointly. A right to paternity leave and pay for the other member of the couple, or an adopter’s spouse or partner, has also been  introducedFor more information see Adoptive parents – rights to leave and pay (PL515).
 

Rights to parental leave and time off for dependants
 

Employees – both mothers and fathers – who have completed one year’s service with their employers are entitled to 13 weeks’ (unpaid) parental leave to care for their child. Parental leave can usually be taken up to 5 years from the date of birth or in cases of adoption five years from the date of placement (or the child’s 18^th birthday, if that is sooner).
 

Parents of disabled children are entitled to 18 weeks’ parental leave (previously 13 weeks) up to the child’s 18^th birthday, providing they have the qualifying length of service. See Parental leave (PL509) (228Kb).

All employees are also entitled to take a reasonable amount of (unpaid) time off work to deal with an emergency or unexpected situation involving a dependant. See Time off for dependants (96Kb).

Further information
 

Both employers and employees can use the DTI's website and its interactive guidance site - TIGER to work out entitlements to paternity and maternity leave and pay.

Employers can get more information on SPP from the Inland Revenue. (who produce an employer's helpbook E15 Pay and time off work for parents (copies available from 08457 64 66 46). For additional help, employers may phone the employers’ helpline on 08457 14 31 43.
 

Further advice on employment law matters, including the new rights, as well as good practice guidance is available from Acas.
 

Small businesses can register at businesslink to receive reminders and updates about changes to employment law. Information is also available on a wide range of help for small businesses.
 

Information on all aspects of employment legislation can usually be provided by accountants, citizens advice bureaux, employer organisations, legal advisers, low pay units, trade unions and a number of private sector and voluntary bodies.

Detailed guidance on paternity leave and pay (955Kb)