Background

  • Eligible employees have been entitled to ordinary paternity leave ('OPL') since 6 April 2003. OPL can be taken as either one whole week or two consecutive weeks within eight weeks of a child's birth or placement for adoption.
  • An eligible employee (i) whose child is due or (ii) whom has been notified of having been matched for adoption on or after 3 April 2011 will also be entitled to take Additional Paternity Leave ('APL') (The Additional Paternity Leave Regulations 2010).
  • APL is an entitlement to take up to six months' of leave to care for a newborn or adopted child if the child's mother (or primary adopter) returns to work without exercising their full leave entitlement - effectively allowing statutory leave to be shared.

Why has this been introduced?

  • A greater number of women are now the main earner in the relationship and cannot afford to remain away from work for a full year.
  • More men are taking an active role in childcare responsibilities.

Who is entitled to take APL?

  • In birth cases, the biological father or the spouse or partner (of either sex) of the child's mother. In cases of adoption, the spouse or partner (of either sex) of the person who is taking adoption leave.
  • The employee must also:
    • be an employee;
    • have sufficient continuity of service;
    • have or expect to have the main responsibility (except for the child's mother or primary adopter) for bringing up the child;
    • the child's mother or primary adopter must have been entitled to statutory leave or pay and returned to work.

How long is APL?

  • APL is available for a period of between two and 26 weeks.
  • The earliest it can begin is 20 weeks after the child's date of birth, or adoption placement but it must end 12 months after the date of birth or adoption.

What are the main notification requirements?

  • There are notice and evidential requirements that the employee must comply with at least eight weeks before they want their period of APL to start. This includes (for birth cases, (i) a written "leave notice" specifying the employee's chosen start and finish dates for the period of APL; (ii) a signed "employee declaration" in which the employee must certify their eligibility; and (iii) a written "mother declaration" from the mother. Note that no documentation is required directly from the mother's employer.
  • Within 28 days of receiving the employee's leave notice, the employer (i) must confirm the dates of the APL to the employee in writing (ii) may request a copy of the child's birth certificate and name and address of the mother's employer.

Is APL paid?

  • The employee may also be entitled to receive additional statutory paternity pay ("ASPP") during APL to a maximum of £128.73 per week (from 3 April 2011).
  • ASPP will mirror the unexpired portion of maternity or adoption pay. For example, statutory maternity pay is payable for 39 weeks. If the mother returns to work after 20 weeks, their partner may qualify for a further 19 weeks of ASPP.

Quirks of APL

  • By combining the parents' statutory leave it will be possible to extend leave beyond a year. Maternity leave can commence up to 11 weeks prior to the expected date of birth. If the mother returns to work six months after her child is born she would have taken 37 weeks leave. Her partner can take a further six months of APL provided that it finishes before the child is one. This would represent a total of nearly 15 months leave!
  • An interesting situation will arise where the employer enhances maternity pay beyond the first 20 weeks. If it fails to offer the same enhancements to those taking APL, it could be acting in a discriminatory manner. Return to work bonuses should also be considered.
  • When will the mother or adopter be treated as having returned to work? What happens if they take sick leave or holiday before physically returning to the office? There may be a technicality whereby the mother could return to work briefly but then resign and the father would still be entitled to APL.
  • Those eligible for APL are protected against any detriment which may be suffered as a result of exercising their right to APL. Employers may need to consider the current culture of its workplace and ensure that the exercising of the right to APL is in no way frowned upon or discouraged.