This Client Alert covers three new legislative developments in UK employment law which came into effect in April 2010 including new paternity leave rights, the introduction of “fit notes” in relation to sickness absence and the new right to request time off work for training. This is essential reading for all HR managers and internal counsel responsible for compliance with UK employment laws.

1. New Paternity

Leave Rights The Work and Families Act 2006 made provision for the introduction of new rights for fathers in the form of additional paternity leave (APL) and additional statutory paternity pay (ASPP). The regulations granting these new rights came into force on 6 April 2010 and will apply to the parents of babies born on or after 3 April 2011. These additional paternity rights are based on a model where time off and pay is split between the mother and father.1 This is a major development in UK employment law and will require UK employers to fundamentally amend their policies and practices regarding family rights.

What are the Current Maternity and Paternity Rights?

For babies born prior to 3 April 2011: Mothers are entitled to statutory maternity leave (SML) and statutory maternity pay (SMP). SML runs for 52 weeks and SMP is payable for up to 39 weeks to mothers who have been continuously employed for at least 26 weeks by the 15th week before the expected week of childbirth (EWC);

Fathers can take one or two continuous weeks’ statutory paternity leave (SPL). SPL must be taken within 56 days of birth of the child and the father must comply with certain notification requirements. Statutory paternity pay is payable for up to two weeks.

New Paternity Rights

The purpose of the regulations is to allow mothers and fathers to share the second six months of the mother’s maternity leave. In other words, if the mother returns to work after six months’ leave, the father can take up to six months paternity leave and pay.

The new regulations allow eligible fathers to take between 2 and 26 weeks’ leave for the purpose of caring for a child aged between 20 weeks and one year old. The APL must comprise of one continuous period of leave. The father is also entitled to ASPP for a maximum of 26 weeks — being the last 26 weeks of the mother’s maternity entitlement. ASPP can only be claimed during the period of the 39 weeks that the mother would have received 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 period. Any APL falling outside of the 39 week SMP period will be unpaid.

To be eligible for APL, the father must satisfy the eligibility requirements for the existing paternity leave rights, namely the employee’s spouse, civil partner or partner must give birth to or adopt a child.

In addition, the father must:

  • Be responsible for the child’s upbringing
  • Take ordinary paternity leave 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

As new paternity rights are “shared” rights, for the father to be eligible, the mother or partner must have returned to work having not exhausted her entitlement to statutory maternity leave and, for the father to be entitled to ASPP, the mother must have returned to work before the end of her first 39 weeks of maternity leave. This is because maternity leave and APL and SMP and ASPP are mutually exclusive and cannot be taken/claimed at the same time.

How Will it Work in Practice — Self-certification

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. 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

This “self-certification” process has understandably come under criticism from concerned employers as the risk of fraudulent claims is clear. To minimise the risk and level of abuse, HM Revenue & Customs (HMRC) have the power to carry out compliance checks on both employers and employees and there will be financial sanctions for anyone abusing the system. However, not many employers will want to rely on such random “spot-checks”.

In response to these concerns, the Government has proposed that employers may 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. Employers of mothers may also need to consider the potential data protection issues arising if/when the father’s employer contacts them to request information about the mother and whether she is on/has been on maternity leave.

Enhanced Benefits — Potential Sex Discrimination Claims

Another issue for employers is whether they are exposing themselves to sex discrimination claims arising where there is a difference between the maternity and paternity pay available to their employees. Many UK employers offer enhanced maternity pay to their female employees but only statutory paternity pay to their male employees. Now that fathers are able to “share” in more family leave, there is more risk that different levels of maternity and paternity pay could be challenged by fathers.

While concerns about fraudulent and sex discrimination claims are valid in theory, it is anticipated that as few as 1 in 16 fathers will actually take up their new paternity rights. It remains to be seen whether the impact on employers will be significant. In the meantime, employers are advised to prepare new family leave policies to comply with the new regulations.

2. Introduction of ‘Fit Notes’

New legislation has also introduced, with effect from 6 April 2010, the new Statement of Fitness to Work, or ‘fit note’. This replaces the old form of medical certificate issued by doctors to allow employees to claim Statutory Sick Pay. The purpose of the fit note is to encourage doctors to help reduce absences due to illness.  

The new system has three key implications:

  1. As well as being able to declare an employee ‘unfit for work’, doctors can now suggest that an employee may be fit for work if certain changes were made by the employer to facilitate the employee’s return to work. These include a phased return to work, changes to the employee’s working environment, working hours and/or workplace duties. Many doctors will not possess the requisite understanding of the nature of the employee’s work to be able to recommend appropriate changes. Moreover, this lack of knowledge raises concerns that doctors may tend to simply apply the ‘unfit for work’ option when in doubt.
  2. The responsibility to determine how suitable an employee is for a return to work now rests with the employer who must consider the advice given by the doctor. It is not mandatory for employers to make any of the changes suggested by the doctor although the implications of an employer refusing to comply with a doctor’s recommendation are unclear. A doctor’s suggestion could potentially be construed as a recommendation to make reasonable adjustments to accommodate an employee’s disability triggering an obligation on the employer, and potential liability, under the Disability Discrimination Act 1995.
  3. Fit notes can be issued for a maximum duration of three months at a time, rather than six months as under the previous sick-note system. Yet, if an employee has already been absent for six months due to illness, their doctor may sign them off for ‘an indefinite period’ if deemed appropriate.

3. Apprenticeship, Skills, Children and Learning Act 2009

This Act has introduced a new right for employees, with 26 weeks service or more, to apply for time away from their core duties in order to undertake study or training. From 6 April 2010 this right has become available to employees in organisations with 250 or more employees. It will be applicable to all employees from April 2011. The employer is in no way obliged to pay an employee’s salary during the training or meet the costs of the training.

A similar procedure applies to requests for time off work to train as applies under the existing right to request flexible working to accommodate childcare arrangements. If an employer fails to follow this procedure the employee has a right to bring a tribunal claim. Up to 8 weeks’ pay may be awarded by the tribunal as compensation. The employer may also be ordered to review the employee’s application again.