After a protracted labour… the Government has finally given birth to new additional paternity rights. These rights will be available to employees (i) whose child is due or (ii) who have been notified of having been matched for adoption on or after 3 April 2011. So, what’s the detail of these rules and, more importantly, how many more tenuously related puns can we squeeze out over the next 300 words or so … ?
Under current paternity law, those employees who qualify to take ordinary paternity leave (OPL) can take up to two weeks off work, usually within the eight week period following the birth or adoption placement. Subject to any enhancements offered by the employer, these two weeks are paid at the statutory rate (£128.73 per week from 6 April 2011).
Under the new rules15, qualifying employees will also be entitled to take additional paternity leave (APL). In effect, this allows a transfer of leave between partners. If the child’s mother or co-adopter returns from statutory leave before taking their full entitlement (52 weeks), their partner will be able to take the remaining period as 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.
The partner may also be entitled to receive additional statutory paternity pay (ASPP) during APL. ASPP will mirror the unexpired portion of maternity 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. 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.
Although we all of course implicitly trust our employees, one question on many employers’ lips is ‘how do we know what entitlements have been taken by someone who is not our employee?’ The Government has cleverly put in place a paper trail so that employers can request evidence from their employees’ partners to confirm that they have been in receipt of maternity pay/allowance and have returned to work.
Finally, before employers get any ideas that those taking APL will be, let us politely call it, ‘frowned upon’ for showing an interest in the new kid on the block, they will have similar protections to women on maternity leave so that their roles and terms and conditions are protected.
These new rights will be particularly welcomed by couples where the mother is the primary earner or whose partner’s employer offers substantially better maternity/paternity payments than their own employer. With these changes looming, now is the time to review and update your paternity policy to avoid any teething problems. In particular, serious consideration must be given as to whether to enhance payments during APL. Failure to act now will inevitably lead to ‘sleepless nights’ when this ‘bundle of legislative joy’ is ‘delivered’ in April. We’ll stop now.