Background

The Additional Paternity Leave Regulations 2010 SI 2010/1055 and the Additional Statutory Paternity Pay (General) Regulations SI 2010/1056 came into force in the UK on 6 April 2010. However, their impact is likely to be felt by employers for the first time over the next few months as fathers of children who are born (or adopted) on or after 3 April 2011 consider whether to take up this right and provide their employer with the required eight weeks' notice. This note is intended to help employers understand the new regime and ensure that they are adequately prepared for any APL requests which might come their way in the near future.

In a Nutshell...

  • APL can last from 2 weeks to 6 months
  • It applies to fathers, spouses, partners of mothers (including same-sex partners) with responsibility for a child's upbringing
  • It applies to parents of babies due (or adopted) on or after 3 April 2011
  • APL must be used up in one complete block and in multiples of complete weeks
  • Employees on APL have the right during APL to be paid the balance of any unused maternity pay as ASPP
  • APL must be taken before the child's first birthday
  • APL attracts special protection similar to maternity leave ( e.g. a right to return to the same job and not to be subjected to a detriment or be dismissed by reason of taking APL)  

The New Right to Additional Paternity Leave (APL)

Fathers, spouses and partners of qualifying mothers (including same-sex partners) will from now on have a right to take APL, and where applicable, to claim Additional Statutory Paternity Pay (ASPP).

Eligibility for APL is broadly similar to the entitlement to take up to two weeks' paternity leave (which under the APL Regulations is referred to as ordinary paternity leave (OPL)). An employee will be entitled to take APL if he or she:

  • has been continuously employed for a minimum of 26 weeks by the 15th week before the date on which the baby is due;
  • is the father, or is married to, or is the partner, or civil partner of the child's mother;
  • has (or expects to have) the main responsibility for the upbringing of the child alongside its mother/primary adopter;
  • is taking time off to care for the child or support the mother or adopter;
  • has complied with the notification requirements;
  • has certified that the mother/primary adopter is entitled to maternity leave, statutory maternity pay or maternity allowance and that she will return to work before APL commences.

While couples are likely to synchronize the start of APL with the end of maternity leave, there is no requirement to do so. Provided they are eligible and serve the correct notice, employees can commence APL at any time during the relevant APL period which starts 20 weeks after the birth and ends on the child reaching their first birthday.

Employees who exercise the right must take a minimum of 2 weeks' APL and a maximum of 26 weeks' APL. They must also ensure that APL is taken in multiples of complete weeks over a single continuous period.

What notification is needed?

The preference for "light touch" regulation means that employees are required to self-certify their eligibility for APL. As a result the employee is responsible for providing the following:

  • An APL Notice - setting out the child's date of birth and the preferred start and end dates for APL
  • A Father's Declaration - confirming that the purpose of APL is to care for the child and that the employee is responsible for the child's upbringing as the father, or the spouse, partner or civil partner of the child's mother
  • A Mother's Declaration - signed by the child's mother which includes her name, address, NI number and the date on which she intends to return from maternity leave (as well as her consent to process that information). The mother must also confirm that the employee proposing to take APL has the status set out in the father's declaration and is the only person exercising the right to APL in respect of that child.

To safeguard against potential abuse by employees, the employer can request a copy of the child's birth certificate and the name and address of the mother's (or primary adopter's) employer. It must however do so within 28 days of receiving an APL notice. The employee requesting leave then has a further 28 days to respond to this request.

APL can be changed or cancelled on giving at least six weeks' notice to the employer prior to the expected start date of APL. If inadequate notice is given the employer can insist on APL going ahead for up to six weeks where it is not reasonably practicable to accommodate the change to APL sooner.

What rights apply during APL?

The rights enjoyed under APL are similar to those applicable to ordinary maternity leave. All terms and conditions of employment other than wages and salary continue as if the employee had never been absent. This means contractual benefits such as holiday entitlement continue to accrue during APL. Employees are also entitled to work for up to 10 KIT days without breaking their entitlement to APL or ASPP.

Employees returning from APL will be entitled to return to the same job unless that role becomes redundant during APL, in which case they will be entitled to a suitable alternative role on terms which are not substantially less favourable.

Employees on APL also benefit from protection against detrimental treatment or dismissal where this can be attributed to the fact that they took or sought to take APL.

The New Right to Additional Statutory Paternity Pay

Who is eligible for ASPP?

The entitlement to ASPP under the Regulations is as follows:

  • the conditions for APL must be satisfied (see above)
  • the employee must have normal weekly earnings (during the relevant eight week reference period) of not less than the National Insurance Lower Earnings Limit (currently £97 a week)
  • the mother (or adopter) must not have used up her full entitlement to statutory maternity pay

How much ASPP is the employee entitled to?

Under Regulation 2 of the Statutory Paternity Pay (Weekly Rates) Regulations, an eligible employee is entitled to receive the lower amount of:

  • the standard weekly rate (currently £128.73); or
  • 90 per cent of their average weekly earnings.

Employees will only be eligible to receive ASPP up to the equivalent of any remaining balance of statutory maternity pay which is unused by the mother.

As far as recovery is concerned, employers can reclaim a minimum of 92 per cent of the ASPP they are obliged to pay. This is increased for smaller employers (those paying NIC of less than £45,000) to 104.5 per cent. (The additional 4.5 per cent is intended to compensate them for the National Insurance Contributions payable in respect of ASPP itself.)

Issues Arising from APL and ASPP Regulations

(i) APL can exceed 52 weeks

The fact that the Regulations provide for a stand alone entitlement to APL rather than an opportunity to share maternity leave has given rise to the anomaly that a couple combining their leave entitlement can take a combined total of up to 63 weeks' leave. 11 weeks more than the 52 weeks available to mothers on maternity leave.

This occurs where the mother starts maternity leave at the earliest opportunity, namely 11 weeks before her expected week of confinement, and returns to work 26 weeks after the child is born. The father can then commence APL for a further 26 week period before he returns to work on the child's first birthday.

(ii) Low take up expected

The fact that APL is paid at the minimum statutory level (currently £128.73) means that the main deterrent for couples is likely to be the financial implications of leave. A report released by the UK Government estimates that take up by fathers will be less than 10 per cent. It would seem couples are most likely to take up APL in circumstances where the child's mother is the main earner and is keen to return to her career.

It remains to be seen whether this regime will last. Indeed, the Government has already announced that a Consultation over a complete overhaul of maternity benefits will occur during this parliament.

(iii) Enhanced Paternity Pay

Another potentially troublesome issue for employers offering enhanced maternity benefits is whether to provide a similar enhancement to fathers taking up APL. At present this would appear to go beyond the strict requirements of discrimination law which specifically exclude a comparison between men and women in relation to maternity benefits. The Labour Government's "Response to Consultation on Choice and Flexibility: Additional Paternity Leave and Pay" published in January 2010 states:

"To date, case law has treated pregnancy as a circumstance that requires special protections ... whilst the Government would support employers and employee representatives who agree contractual paternity enhancements, we do not believe there is any requirement for employers to offer terms above statutory requirements."

The main challenge to this view is likely to come from the European courts. APL relies on there being a woman with a right to take maternity leave who is willing to transfer the balance of her entitlements to her partner.

In Álvarez v Sesa Start España, the ECJ decided that a Spanish law entitling fathers to take time off to bottle-feed their child discriminated on the grounds of sex. This entitlement was conditional upon the mother having a similar right. Mrs Álvarez was self-employed a fact which precluded her (and therefore also her husband) from taking the leave. The Court decided that bottle feeding was something that either parent could do and as such, it could was no longer appropriate to see the provision of leave as specifically for the protection of new mothers. Similar arguments are likely to arise in relation to child-care during APL.

(iv) Bonus issues arising on APL

The complexities regarding the payment of bonuses referable to a period of maternity leave will also be relevant to APL. Employers often pay bonuses based on considerations of individual and firm performance and to reward and encourage loyalty. In the case of Hoyland v ASDA, a bonus which was intended to reward employees "for their continued contribution to the business during the bonus year" was held to constitute "wages or salary" and could be withheld from payment legitimately under the Regulations. Loyalty bonuses on the other hand would need to be paid out in full. Often it is tricky for employers to identify clearly the purpose of a bonus and in such cases it is safest to err on the side of caution.

Practical Steps & Guidance

(i) Deal with practicalities of eligibility and notification

In readiness for future requests, employers should create the standard application forms and checklists necessary for APL.

(ii) Familiarise yourself with the new rules

We also recommend that employers read the guidance issued by the Department for Business Innovation and Skills and HMRC which can be viewed by clicking here and here.

(iii) Update staff handbook and policies

Finally, employers should ensure that equal opportunities, redundancy and bonus policies are all updated and that managers are aware of employees' rights to APL and ASPP. Employers may also wish to consider whether or not to offer contractual enhanced paternity pay.

Decision makers for the purposes of any redundancies or bonus awards should be made aware of the potential issues and ensure that those returning from APL are treated in accordance with the APL Regulation requirements.