As of 6 April 2010, eligible employees (fathers, partners and civil partners) of children due on or after 3 April 2011 will be entitled to additional paternity leave and pay (“APL&P”). The draft APL&P legislation comprise four sets of regulations which are currently before Parliament. They give a right to a minimum of two weeks’ and a maximum of 26 weeks’ leave to care for a child, if the child’s mother returns to work without exercising their full entitlement to maternity leave. Some of the leave may be paid if it is taken during the mother’s maternity pay period.

Action required & key considerations

The below will require employers to start to review their maternity, paternity and family friendly policies during the course of 2010. Employers who operate an enhanced maternity pay scheme will have to consider if male employees should also be entitled to equally enhanced rights of pay and if not, why not? It will be interesting to see if the cost of providing enhanced benefits for all employees will result in a reduction in benefits or access to enhanced schemes for both men and women. There may also be a debate as to who takes priority if there is a redundancy situation and the employer has only one suitable alternative role but to employees at risk, one employee on additional maternity leave and the other on APL. Further, given the similarities with the maternity legislation, we will inevitably see employers wrestling with the same problematic issues of pay rises, bonuses and pensions.

Summary of APL&P Scheme

The APL&P scheme is modeled on the statutory maternity scheme (i.e., for the purposes of calculating pay there will be the same 26 weeks’ length of service requirement and reference period). The main provisions are as follows:

Eligibility

  • APL&P will be available to employees 20 weeks from the date of birth up to the child’s first birthday.  
  • The employee must have 26 weeks’ continuous service by the end of the 15th week before the date of birth.  
  • It will not have to run back-to-back with the end of the period of maternity.  

Notice & process

  • The employee will be required to give a minimum of eight weeks’ notice of their intention to take additional paternity leave (“APL”) and provide a written leave notice, an employee declaration and a mother’s declaration.  
  • The employer may ask for additional evidence within 28 days of receiving a request and, subject to this request for additional evidence, an employer will be required to confirm an employee’s entitlement to APL within 28 days of the date of the employee’s notification of their wish to take it.  
  • The employee will be entitled to return to work early by giving six weeks’ notice.  

Pay & benefits

  • If the employee is eligible for additional paternity pay (“APP”), it will be at the lower statutory rate of £124.88 per week and payable during the mother’s statutory maternity pay or maternity allowance period.  
  • The employee is entitled to all terms and conditions during the APL period save for remuneration.  
  • The employee will be able to work for up to 10 days during the APL period without bringing the APL to an end. It is for the parties to agree if this is paid.

Protections

  • It will be unlawful to subject the employee to a detriment because of APL or dismiss the employee if the reason/principal reason was that his employer believed that he was going to take, he asked to take or took APL.  
  • If the employee is at risk of redundancy during the APL period, he has the right to be offered suitable alternative employment in preference to other employees who are in the workplace.  

Similar provisions apply to those who are adopting a child.  

Employers will be able to recover 92% of APP or 104% if the employer qualifies for small employer relief. Commentators suggest that the Conservative party supports the increased entitlements and that it may even extend the provisions to allow both parents to be off at the same time.