WORKING
FATHERS (PL517)
Rights to
leave and pay: a guide for employers and employees
Introduction
This
is a guide to paternity leave and pay. It sets out the minimum amounts of
paternity leave and pay an employee is entitled to take at the time of the birth
of his child. It also explains what an employee can do if he feels his employer
has denied him these rights. These rights apply to employees whose babies are
expected to be born or are born on or after 6 April 2003.
The
guide covers paternity leave and pay for employees whose partners give birth to
a child. Similar rights to paternity leave and pay are available to one member
of a couple adopting jointly or the partner of an individual adopting – see
Adoptive parents – rights to leave and pay (PL 515).
The
Employment Act 2002 sets out the basic rights to paternity leave and pay. The
Act amends the Employment Rights Act 1996 and the Social Security Contributions
and Benefits Act 1992.The detail of the rights is mainly set out in the
Paternity and Adoption Leave Regulations 2002 and the Statutory Paternity Pay
and Statutory Adoption Pay (General) Regulations 2002.
Note
that this is general guidance only: it has no legal force and cannot cover every
point and situation. It describes the position which applies in England, Wales
and Scotland. For Northern Ireland, corresponding legislation applies and comes
into force on the same date.
The
rate of Statutory Paternity Pay (SPP)
given in this guidance is correct at the date of publication. The rate is
subject to revision each April.
Your local Inland Revenue office can advise you of the current rate.
Paternity
leave and pay are part of a package of rights and benefits designed to give
support to working fathers, mothers and their partners. Section 9 of this guide
summarises other important rights and benefits. Section 10 explains where you
can go to get further advice on employment legislation.
| Help
For
further help with paternity leave, please contact the ACAS helpline on
08457 47 47 47.
For
further help with paternity pay, employers can contact the Inland Revenue
on 08457 143 143; employees should contact their local Inland Revenue
office – you’ll find them in your local telephone book under ‘Inland
Revenue’.
For
interactive tailored guidance on paternity leave and pay, see TIGER
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Section
1: Outline of the rights
What
are the rights?
The
rights to paternity leave and Statutory Paternity Pay (SPP) allow an eligible
employee to take paid leave to care for his baby or to support the mother
following birth. He can take either one week’s or two consecutive weeks’
paternity leave and during this time may be entitled to SPP (see Section 5
for
more information on SPP).
When
do the rights take effect?
Legislation
lays down that:
•
Employees whose children are expected to be born on or after 6 April 2003
benefit
from the new paternity leave
and pay provisions;
•
Employees whose children are expected to be born on or after 6 April 2003 can
take paternity leave and pay even if their children are born earlier than
expected;
•
Employees whose children are expected to be born before 6 April 2003, but whose
children are born later than expected on or after 6 April 2003, can take
paternity leave and pay (special notice arrangements will apply – see Section
4).
Who
qualifies for these rights?
These
rights apply to employees, regardless of the hours they work, provided that they
satisfy the other qualifying conditions. These include twenty-six weeks’
qualifying service with their employer (ending with the fifteenth week before
the baby is due) – see Section 2 for full details.
•
To qualify for paternity leave, a person must be an employee, that is to say
must work under a contract of employment1
•
To qualify for Statutory Paternity Pay (SPP) a person must be an employed earner – that is to say, must work for someone who is liable
to pay the employer’s share of his Class 1 National Insurance contributions2
•
In addition an employee must be earning at least the Lower Earnings Limit to
qualify for SPP – see Section 5.
The
vast majority of people who qualify for leave will also qualify for pay, and vice versa, but there are a few exceptions noted below.
A
self-employed person who chooses to take time off to care for his new child or
its mother or someone who is not working may be able to claim other benefits –
these are summarised in Section 9.
Are
any particular types of workers excluded from these rights?
Most
agency workers are not usually classed as employees – though some may be
– and therefore may not qualify for leave. However, agency workers can be
treated as employed earners and may thus be entitled to SPP.2
Office
holders – such as police officers, MPs, the judiciary and some company
directors – will similarly generally only qualify for pay, not leave. The
same applies to members of the armed forces.
Does
an employee who adopts a child qualify for paternity leave and pay?
Employees
who adopt children on or after 6 April 2003 have the right to adoption leave and
pay. This right applies to individuals who adopt or one member of a couple
adopting jointly. The partner of an individual who adopts, or the member of a
couple adopting jointly who hasn’t chosen to take adoption leave, may be
entitled to paternity leave and pay. The rules governing this entitlement are
different from those described in this document: they are covered in Adoptive
parents – rights to leave and pay (PL515).
Is
an employee entitled to time off to attend antenatal care appointments?
Under
the statutory right to paternity leave, employees are not entitled to time off
to accompany their partner at antenatal appointments (although pregnant
employees do have the right to time off – see Maternity rights – a guide for
employers and employees (PL 958)  (590Kb)).
What
happens if an employer has their own paternity leave scheme?
This
guidance is about employees’ statutory rights under employment legislation.
They cannot contract out of these rights. Those employees whose employment
contracts give them entitlements to paternity leave may take advantage of those
contractual rights or their statutory rights, depending on which are more
favourable. Employees who believe they are not entitled to the statutory rights
described here should check whether they are entitled to take leave under their
contracts.
What
happens if an employer has their own paternity pay scheme?
The
employer must pay the SPP the employee is entitled to. If the employee is also
entitled to contractual paternity pay for the same period as he is entitled to
SPP and it is more than the SPP, the employer should top up the SPP to the
amount of the contractual paternity pay.
Meaning
of expected week of childbirth or the week the baby is due
In
this document ‘expected week of childbirth’ or ‘the week the baby is due’
means the week, beginning with midnight between Saturday and Sunday, in which it
is expected that the baby will be born.
Section
2: Who
is eligible for paternity leave and pay
What
makes an employee eligible for paternity leave?
An
employee is eligible for paternity leave if he has or expects to have
responsibility for his baby’s upbringing and is either or both
• the biological father of his baby
•
the mother’s husband or partner3
In
addition, he must
•
have worked continuously for the same employer:
–
for twenty-six weeks ending with the fifteenth week before the baby is due (the
‘qualifying week’) and
–
from the fifteenth week before the baby is due up to the date of birth;
•
be taking the time off either to support the mother or to care for the new baby.
What
is paternity leave for?
An
employee can only take paternity leave in order to care for his new baby or
support the mother of the baby – he cannot take leave for any other purpose.
Who
qualifies as a partner?
For
the purposes of deciding if an employee is eligible for paternity leave, a
partner is someone who lives with the mother of the baby in an enduring family
relationship but is not an immediate relative (and see footnote 3 at the bottom
of this page).
Are
there any exceptions to the qualifying conditions for leave?
If
the baby is born earlier than the fourteenth week before it is due and, but for
the birth occurring early, the employee would have been employed continuously
for the twenty-six weeks, then he will be deemed to have the necessary length of
service.
Will
an employee qualify for leave if his baby is stillborn or dies following birth?
A
qualifying employee will be entitled to paid leave if his baby is stillborn
after twenty-four weeks of pregnancy.
If
the baby is born alive at any point in the pregnancy but dies later, the
employee will be entitled to paid paternity leave in the usual way.
What
qualifying conditions are there for Statutory Paternity Pay?
In
addition to the qualifications for leave (see above), to qualify for Statutory
Paternity Pay (SPP) an employee must have average weekly earnings at or above
the Lower Earnings Limit for National Insurance at the end of his qualifying
week. The employee does not have to pay National Insurance to qualify. Section 5
of this guide covers SPP in more detail.
What
counts as working continuously for the period needed to qualify for pay and
leave?
Continuous
employment generally means working for the same employer without a break, but
this is not always the case. An employee’s continuity of employment for the
purposes of qualifying for SPP and paternity leave will not be regarded as
broken in certain circumstances. For more information on the law in this area,
see Continuous employment and a week’s pay (PL
711).
If
an employee changes jobs before his baby is born will he qualify for pay and
leave?
Unless
the new employer is an associated employer, the employee probably won’t
qualify for pay or leave. The document Continuous employment and a week’s pay
(PL 711) will tell you more about when time with a previous employer may count
towards continuity of employment
If
an employee’s contract ends after his baby is born, will he be entitled to pay
or leave?
The
employee is still entitled to SPP, even if his contract ends after the baby is
born. However, if he starts work for a new employer, he cannot get SPP for any
week he works for them.
What
happens if the employer decides the employee doesn’t qualify for SPP or paternity leave?
If
the employer decides that the employee is not entitled to SPP for any reason,
they must give him a written statement. Form SPP1 I cannot pay you Statutory
Paternity Pay (SPP) (available from the Inland Revenue Employer’s Orderline on
08457 646 646) can be used for this.
If
the employee disagrees, he should first discuss it with his employer. If he is
still unhappy he should contact an Inland Revenue office to ask for a decision
– see Section
5 for more information.
If
the disagreement is about paternity leave, the employer or employee may contact
ACAS.
Section
3: The period of leave
How
much paternity leave can an employee take?
Eligible
employees can choose to take either one week’s or two consecutive weeks’
paternity leave. It can’t be taken as odd days or as two separate weeks.
Employees
can take only one period of leave even if more than one baby is born as the
result of the same pregnancy.
When
can an employee start his leave?
Leave
cannot start until the birth of the baby. Otherwise, an employee can choose to
start his leave:
•
on the date of the baby’s birth (whether this is earlier or later than
expected); or
•
on a date falling such number of days after the date on which the child is born
(whether this is earlier or later than expected) as the employee notifies to his
employer; or
•
on a chosen date as notified to his employer which falls after the first day of
the expected week of childbirth.
Employees must give their employer the required
notice of their leave – see Section 4.
If
an employee specifies the date of birth as the day he wishes to start his leave
and he is at work on that day, his leave will begin on the next day.
If
an employee qualifies for leave because, although the expected week of
childbirth is before 6 April 2003, his baby is born after that date, he must
specify an actual date on which his leave will begin, and this must be at least
twenty-eight days after the date on which notice is given (see Section
4).
Must
leave be taken within a certain period?
Paternity
leave can start on any day of the week, as long as the employee has given the
required notice. It must be completed:
•
within fifty-six days of the actual date of birth of the child; or
•
if the child is born earlier than expected, between the birth and fifty-six days
from the
first day of the expected week of birth.
Section
4: Notification and evidence required for leave and pay
When
must an employee tell his employer that he is going to take leave?
To
qualify for paternity leave, an employee must tell his employer that he intends
to take paternity leave by the end of the fifteenth week before the week his
baby is due or, if this isn’t possible, as soon as is reasonably practicable.
When
must an employee tell his employer that he wants SPP?
To
qualify for SPP, an employee must tell his employer that he wants to get SPP at
least 28 days beforehand. Where an employee is entitled to both pay and leave,
the notice given for leave by the fifteenth week before the week the baby is due
can count for pay as well.
What
must an employee tell his employer if he wants to take leave or claim SPP?
To
claim either paternity leave or Statutory Paternity Pay (SPP), he must tell his
employer:
•
the expected week of the baby’s birth
•
whether he wishes to take one or two weeks’ leave
•
when he wants to start his leave
In
addition, to claim SPP he must make a declaration (see below). The employee must
also tell his employer when his baby was actually born as soon as is reasonably
practicable after the birth.
What
is the declaration an employee must make to be entitled to SPP?
To
get SPP, the employee must give his employer a signed declaration that he:
•
is taking leave either to care for his child or to support the mother or both;
•
has or expects to have responsibility for the upbringing of the child;
•
is the father of the child and/or the partner or husband of the mother.
This
declaration is included on the model self-certificate SC3 Becoming a parent
(37Kb) (produced by the Inland Revenue). The employer should accept this declaration at face
value unless they have very good reasons for believing it is false.
Does
the employee have to give the information required to claim leave and pay in
writing?
To
get SPP an employee must give his employer a completed self-certificate as
evidence of his entitlement at least 28 days before he wants his SPP to begin. A
model self-certificate (SC3 Becoming a parent)
(37Kb) for employers and employees to
use is available from the Inland Revenue.
The
information needed to claim paternity leave must be put in writing if the
employer requests it. It therefore may make sense for the employee to provide a
completed self-certificate for both leave and pay when giving his notice for
leave.
The
employee should tell his employer the date of birth – in writing if the
employer requests it. However, the employee is not obliged to give his employer
any medical evidence of the pregnancy or birth (unlike the obligation on the
mother to provide medical evidence to claim Statutory Maternity Pay).
Does
an employee have to give an actual date on which he intends to start leave?
Section
3 explains the options an employee has in deciding when to start his leave:
•
if he plans to start it on the date of birth then he should tell his employer
this;
•
if he plans to start leave on a particular date after the first day of the week
the baby is due, he must specify the date;
•
if he chooses to take leave a certain number of days after the birth, he needs
to specify how many days that will be.
Can
an employee change his mind about when his leave starts?
An
employee can change the date on which he wants his leave to start (but not the
length of the leave he is taking) as long as he gives his employer the required
notice as follows:
•
if he wants to change his leave so it starts on the date of birth, at least
twenty-eight days before the first day of the week the baby is due;
•
if he wants to change his leave so it starts a specified number of days after
the birth, at least twenty-eight days before the date falling the same number of
days after the first day of the week the baby is due;
•
if he wants to change his leave so it starts on a particular date, twenty eight
days before that date.
If this isn’t possible, he should tell his employer as
soon as is reasonably practicable. If an employee changes his mind, he should
fill in a new self certificate.
What
must an employee do to fulfil the notice requirements for leave and pay if his
baby is born earlier than expected?
If
the baby is born before it is due, the employee may not be able to give his
employer the required notice of his leave. He should, however, give the
information and declaration required on the form SC3 as soon as is reasonably
practicable if he wants to claim leave and/or pay. He can take his leave at any
time between the birth and fifty-six days after the first day of the week the
baby was due.
What
must an employee do if he has told his employer his leave will begin on a
specified date but the baby isn’t born
by that date?
An
employee cannot take paternity leave or be paid SPP before the birth of his
baby. If the baby isn’t born by the date he specified, then he must change the
date or choose to take leave from the actual date of birth or a specified number
of days after the birth. Whatever he chooses to do, he must give his employer
notice as soon as possible.
What
are the special notice arrangements for babies expected before 6 April 2003 but
born on or after that date?
If
the employee’s baby is due before 6 April 2003 but it is born on or after that
date, an employee can still get paternity leave and SPP. In these circumstances
the employee must specify the actual date on which he is going to start his
leave, and this date must be at least twenty-eight days after the date he gives
notice to his employer. This means that the employee will not automatically be entitled to leave or pay
from the date of birth itself. However, his employer may agree that leave can
start before
the end of the twenty-eight day period, or he may decide to give notice before
the actual date of birth if it is likely the baby will be born late. He can only
change the date which he has chosen as the date on which his paternity leave
starts by substituting a different predetermined date.
Can
an employee involved in an industrial dispute give notice that he is going to take paternity leave?
If
an employee is involved in an industrial dispute, he can still give his employer
notice of the date his paternity leave will start. This date can be within the
period of the dispute. Any notice that the employee has already given to his
employer is not affected by a subsequent trade dispute.
How
should an employee give notice if he intends to take parental leave immediately
before or after his paternity leave?
He
should give the required notice for parental leave as well as his notice for
paternity leave. For further details about parental leave, see Parental leave: a
guide for employers and employees (PL 509)
(228Kb)
Footnotes
1. In cases of doubt, whether a person is an employee or not is determined by a
number of factors. This is explained in further detail in the document Contracts
of employment (PL810).
2. In cases of doubt contact
your local Inland Revenue office and ask for the Status Inspector.
3. 'Partner' may include a female partner in a same sex couple. Where this guide
refers to employees as 'father', 'he', 'him' or 'his', this should be taken to
include those female same sex partners who qualify.
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