Despite press speculation that the UK government was considering revoking the relevant regulations, new paternity rights for fathers of children born on or after April 3, 2011 will be coming in to force as planned. Employers should therefore review and update their paternity leave policies as soon as possible. The new rights also apply to fathers of adopted children where the notification of being matched for adoption is received on or after April 3, 2011. Please note that although we refer to the rights of “fathers” in this context, these provisions will also apply to civil partners in a same-sex relationship.

The purpose of the regulations is to allow fathers to take additional paternity leave (APL). For a person to be entitled to APL, the mother must have returned to work, and the child must be at least 20 weeks old. A maximum of six months APL can be taken, and must cease by the child’s first birthday. For adopted children, the relevant time periods are from 20 weeks following the date of adoption up to one year of the anniversary of that date. A minimum of two weeks APL must be taken, and the APL must be taken as a continuous period of leave. APL is in addition to the ordinary paternity leave (OPL) of one or two weeks that fathers can take around the time of the birth.

The father must:  

  • Be the spouse, civil partner or partner of the person giving birth to or adopting a child  
  • Be responsible for the child’s upbringing  
  • Take OPL in order to care for the child  
  • Have been in continuous employment with their employer for at least 26 weeks by the 15th week before the child’s due date or adoption date  
  • Continue in that employment until the child’s birth or adoption  

Under the new regulations, the father is also entitled to additional statutory paternity pay (ASPP) for a maximum of 26 weeks. ASPP can only be claimed during the period of the 39 weeks, from the date the maternity leave started, during which the mother would have received statutory maternity pay (SMP). This means that the mother must have returned to work within 39 weeks of commencing maternity leave for the father to claim ASPP for the remaining weeks within that 39-week period. There is no entitlement to ASPP for APL taken outside that 39-week period.

Many UK employers offer contractual maternity pay to their employees that is in excess of the employee’s entitlement to SMP. Therefore a question that arises is whether pay for APL should also be enhanced above the statutory minimum. If it is not, there is a risk that employers may face sex discrimination claims from fathers. Note that this issue would already have theoretically been a potential concern in respect of OPL being paid at the statutory minimum where enhanced maternity pay was offered by the employer, which is not uncommon. It may be the case that as OPL can only be taken for a maximum of two weeks, the financial effects of the lower rate of pay were less of a concern that they may be now if a father wants to take his full entitlement to APL. However, it has been estimated that very few fathers will take up their new right to APL, so the impact of the new regime on employers may be limited in practice.

There has also been speculation concerning the difficulties in ensuring that the new system is not abused. Clearly where the mother and father are employed by the same company it will be easy for the employer to police this sharing of leave — the employer will know whether or not the mother has returned to work. However, in the more usual situation — where parents do not work for the same company, employers will have to rely on a “self-certification” system to check that their employees are complying with the APL rules.

The regulations require the father to provide his employer with at least eight weeks’ notice of his intention to take APL along with:

  • A notice of leave which sets out the child’s date of birth and the proposed APL start and end dates  
  • A declaration signed by the father confirming that he satisfies the eligibility requirements for APL (as outlined above)  
  • A declaration signed by the mother setting out her name, address, National Insurance number and the date on which she intends to return from maternity leave. She must also confirm that the information in the father’s declaration is accurate  

To minimize the risk of abuse of the system, HM Revenue & Customs (HMRC) has the power to carry out compliance checks on both employers and employees and there will be financial sanctions for offenders. The government has also suggested that employers request further information from the father, such as the name and address of the mother’s employer and the birth certificate of the baby. Employers are advised to consider including requirements to provide such information in their revised policies.  

These new regulations may not be the end of the story on sharing of leave to care for a child. Various Members of Parliament have commented on potential further reforms, such as both parents being permitted to take leave concurrently, and the period of APL being extended further. Whether any of these proposals will make it into the statute books remains to be seen