In our recent employment update of 1 April 2010, we summarised the details of the new Additional Paternity Leave and Pay scheme which came into force on 6 April 2010. In this edition of Employment Highlights, we consider the scheme in more detail and give employers guidance as to its practical implications.

Legal background

Prior to 6 April this year the right to paid paternity leave was the right to two weeks’ paid leave to be taken within eight weeks of the baby’s birth or placement for adoption. The Work and Families Act 2006 made provision for the introduction of the statutory right to a period of additional paid paternity leave and, following a lengthy consultation process, the final draft Additional Paternity Leave Regulations 2010 (the Regulations) and five other sets of supporting regulations governing the scheme were published earlier this year. The Regulations came into force on 6 April 2010 and apply to parents of babies due on or after 3 April 2011 and adopters who are notified of having been matched with a child on or after that date.

Key elements of the scheme

The new scheme will provide eligible employees (usually fathers) with the right to up to 26 weeks’ additional paternity leave (APL) to care for a child if the child’s mother or (in the case of adoptions) the primary adopter returns to work without exercising their full entitlement to maternity or adoption leave. Some of that leave may be paid if it is taken during the mother's maternity pay period or, for adopted children, during the primary adopter's adoption pay period. The scheme will therefore give parents the option of dividing the period of leave entitlement between them. (The Regulations do not affect the maternity or adoption pay period and there are no current plans to increase this period from 39 to 52 weeks, in line with the period of leave, as was previously promised.)

APL must be taken no earlier than 20 weeks after the child's birth (or placement for adoption) and before the child's first birthday (or first anniversary of placement for adoption). Special provisions apply where the mother or primary adopter dies within 12 months of the child's birth or placement for adoption.

The entitlement to APL is in addition to the existing right to two weeks’ paternity leave which may be taken within the first eight weeks of the child’s life or placement for adoption.

An employee who is entitled to APL may not always be a man. For example, the female partner of the mother or primary adopter may be entitled to APL. However, for the purposes of this article, the term “he” is used throughout but should be read as “she” in appropriate circumstances. Equally, the primary adopter may not always be a woman but the term “she” is intended to be read as “he” in appropriate circumstances also.

Eligibility

An employee is entitled to take APL for the purposes of caring for a child if:

  • he has been continuously employed for a period of not less than 26 weeks ending with the relevant week (which is the week immediately before the 14th week before the expected week of childbirth or the week in which the employee has been notified of being matched with a child for adoption); and
  • he remains in continuous employment with that employer until the week before his first week of APL; and
  • he is either the child’s father or married to or the partner or civil partner of the child’s mother or, in the case of adoption, is either married to or the partner or civil partner of the primary adopter; and
  • he has, or expects to have, the main responsibility (apart from any of the mother) for the child’s upbringing or has been matched with the child for adoption; and
  • he has complied with the notice and evidential requirements referred to below; and
  • the mother or primary adopter has satisfied the conditions set out below.

Notice and evidential requirements

As outlined above, in order for an employee to be eligible for APL, he must have complied with the prescribed notice and evidential requirements. He must, not less than eight weeks before the start date of his APL, give to his employer:

  • a leave notice;
  • an employee declaration; and
  • a mother (or adopter) declaration.

The “leave notice” is a written notice specifying the expected week of childbirth or the date on which the employee was notified of having been matched for adoption, the actual date of birth or date of placement for adoption and the start and end dates of the period of APL.

The “employee declaration” is a written declaration signed by the employee, stating that the period of leave will be to care for the child and that the employee satisfies the necessary relationship and responsibility or placement requirements outlined above.

The “mother declaration” or “adopter declaration” is a written declaration by the mother or primary adopter stating her name and address; the date she intends to return to work (for the purposes of the Regulations); her National Insurance number; that the employee taking APL satisfies the conditions relating to relationship and, in non-adoption cases, responsibility; in non-adoption cases, that the employee taking APL is, to her knowledge, the only person taking APL in respect of the child; and that she consents to the employer processing the information contained in the declaration.

If requested, the employee taking APL must provide his employer with a copy of the child’s birth certificate (or, in the case of adoption, the name and address of the relevant adoption agency, the date on which the employee was notified of placement and the date of expected placement) and name and address of the mother’s or primary adopter’s employer (or details of her business address if self-employed).

There are special provisions relating to variation or cancellation of the notified period of APL. Otherwise, the employer must confirm in writing to the employee within 28 days of receipt of the leave notice the dates of the period of APL.

The conditions relating to the mother or primary adopter

The conditions which the mother or primary adopter must have satisfied are that she is entitled in respect of the child to maternity leave; statutory maternity pay; or maternity allowance or, in the case of adoption, to adoption leave or statutory adoption pay and, in either case, has returned to work in accordance with the Regulations. This means that she is no longer on maternity or adoption leave and no longer in receipt of maternity pay, maternity allowance or adoption pay. She must also have signed the mother or adopter declaration referred to above.

When may leave be taken?

APL may be taken at any time within the period beginning 20 weeks after the child’s date of birth or placement for adoption and the child’s first birthday or anniversary of placement for adoption.

The minimum period of APL which may be taken is two weeks and the maximum is 26 weeks. It must be taken in multiples of complete weeks and must be taken as one continuous period.

It must be taken no earlier than eight weeks after the employee gave leave notice.

These rules are, however, subject to special provisions which apply in the event of the death of the mother or primary adopter within the first 12 months of the child’s birth or placement for adoption, or in the event of the death or disrupted placement of the child.

What is the rate of additional paternity pay?

From 6 April 2010, the standard weekly rate for additional paternity pay which will be payable during the balance of any paid period of maternity or adoption leave which is not taken by the mother or primary adopter, is £124.88 or 90 per cent of normal weekly earnings if lower.

Other relevant provisions

During APL an employee is entitled to the benefit of the same terms and conditions of employment which would apply if he were not on leave with the exception of any entitlement to remuneration.

If an employee wishes to return to work before the end of the period of APL notified to his employer, he must give at least six weeks’ notice of his new return date (unless the special provisions relating to the death of the mother or primary adopter apply).

An employee returning from APL is entitled to return to the same job.

Employees are protected from being subjected to any detriment or from dismissal for a reason related to APL.

What should employers do?

The new rules relating to APL are already in force. However they will not affect parents of children due before 3 April 2011 or those notified of having been matched for adoption before that date. Nevertheless, employers are advised:

  • to review and amend where necessary their current policies on paternity leave to reflect the changes;
  • to provide their managers with appropriate training on the new right so that they are able to deal with any queries from employees; and
  • to inform employees of the details of any changes to the paternity leave policy.

The Government has promised that guidance on the new rights will be put in place before 3 April 2011 to ensure that employers and employees are aware of the changes and have sufficient information about them.