Paternity rights: leave and pay

Employees can take either one week’s, or two consecutive weeks’ paternity leave (not odd days), and during this time may be entitled to paternity pay.

These are the Statutory Minimum Rights under the Maternity and Paternity Leave Regulations 2002. Employers may offer more generous terms but must apply them equally to all staff to avoid potential discriminatory practices.

These regulations introduced paid Paternity Leave to enable fathers as well as mothers to be involved in the childcare of a new baby. To be eligible, the employee:

Must have had 26 continuous weeks of employment ending with the fifteenth week before the baby is due
Must be the biological father of the baby and/or the mother's husband or partner (including same-sex partner or civil partner). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative and must have (or is expected to have) responsibility for the baby's upbringing
Must have notified the employer of their intention to take Paternity Leave

An employee also qualifies for Paternity Leave when adopting a child from the UK if they:

Are either one of two parents jointly adopting a child or the partner of someone adopting a child individually.
Have - or expect to have - responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter.
Are not taking statutory adoption leave and pay.
Have been continuously employed for at least 26 weeks ending with the week in which they are notified of having been matched with the child - the qualifying week. The qualifying week starts on a Sunday and ends on a Saturday.
Continue to work for the employer from the qualifying week to the date of the child's placement.
Notified the employer when they want to take SPL no more than seven days after the adopter is notified that they've been matched with a child.
Will be taking time off to support the adopter and/or to care for the child. They cannot take SPL for any other purpose.

This is also the case for employees adopting from overseas, however the notification procedures are different.

Paternity leave

Employees can choose to start their leave:
From the date of the child’s birth (whether this is earlier or later than expected), or
From a chosen number of days or weeks after the date of the child’s birth (whether this is earlier or later than expected), or
From a chosen date later than the first day of the week in which the baby is expected to be born.

Leave can start on any day of the week on or following the child’s birth but must be completed:

Within 56 days of the actual date of birth of the child, or
If the child is born early, within the period from the actual date of birth up to 56 days after the first day of the expected week of birth.
Only one period of leave is available to employees irrespective of whether more than one child is born as the result of the same pregnancy.

Rights during and after paternity leave

An employee who qualifies for paternity leave is entitled to:

Return to the same job
Return to the same terms and conditions of employment
Not be subjected to a disadvantage, unfair treatment or dismissal

Paternity pay

An employee must complete and sign a model self-certificate SC3 in order to be entitled to Statutory Paternity Pay (SPP). For more information, see the relevant section of the HM Revenue & Customs website.

The rate of SPP is 90% of average weekly earnings, if this is less than £124.88 per week, for the full 2 weeks. Entitlement to SPP remains the same even if there is a multiple birth.

Those employees, whose earnings are below the lower earnings limit for National Insurance purposes, do not qualify for SPP but may be entitled to other welfare benefits.

Additional Paternity Leave and Pay

Additional Paternity Leave and Pay will entitle employed fathers to a new right of up to 26 weeks Additional Paternity Leave, some of which could be paid, if the mother returns to work.

The Work and Families Act 2006 has taken powers to enable this new provision to provide more choice to parents in caring for their child, giving fathers a greater opportunity to be involved in the upbringing of their child.

Key points for consideration in relation to Additional Paternity Leave and Pay:

It applies for parents of children due (or matched for adoption) on or after 3 April 2011.
The mother and father will therefore between them be entitled to SMP or ASPP for a combined total of 39 weeks.
ASPP is likely only to cover part of the additional paternity leave (APL). The APL will only be paid if taken during the mother’s maternity pay period. Leave taken after this time will be unpaid.
The father will only qualify for ASPP if the mother returns to work before her maternity pay period expires.
The start date of the mother’s SMP, MA or SAP must be provided to the father’s employer so that the period in which he can claim ASPP can be calculated.
In addition the father will have to notify the employer of the dates that the ASPP is expected to start and finish.