Paternity Leave

Since 2003, men with parental responsibility for a child have had the right to take two weeks’ paid paternity leave (PL), which is paid at the same rate as statutory maternity pay (SMP). PL must be taken within 56 days of the birth of the child and must be taken in a single period. Critics of the system have argued that the level of payment means that lower-paid employees cannot afford to take the time off, and in any event, such a short period of leave is insufficient to redress the imbalance of time spent on childcare between men and women. What statistics there are on the subject, suggest that the overall take-up of PL has been around 50% and it seems safe to state that it has not made any significant dent in the assumption (both inside and outside the workplace) that women are primarily responsible for childcare.

In 2011, paternity rights will be significantly extended by the Additional Paternity Leave Regulations (the Regulations). The Regulations apply to fathers of children whose expected week of birth begins on or after 3 April 2011. Similar rules also apply to adoptions that take place on or after that date. To qualify for additional paternity leave (APL), the ‘additional cover’ must show that:

1. they have been employed by their employer for 26 weeks prior to the 14th week before the expected week of birth;
2. their earnings have exceeded the lower earnings limit;
3. they are either the father of the child, or the husband, partner or civil partner of the mother; and
4. they expect to have the main responsibility (apart from that of the mother) for bringing up the child.

However, even if the additional cover can satisfy these conditions, there is no independent right to APL. Public policy remains that only one carer should be supported to have time off from the workplace and APL relies on there being a woman with a right to maternity leave (ML) who wishes to transfer some of her entitlements to the additional cover. For APL to be available, the woman must have returned to work on a permanent basis, and have ended her ML before she has exhausted her full entitlement to it. In those circumstances, the additional cover can make use of the untaken element of the woman’s ML by way of APL. APL, which is a maximum of 26 weeks, cannot begin before 20 weeks after the birth of the child and must be completed prior to the child’s first birthday. Fathers who qualify for the right to take APL are entitled to a minimum of two weeks' and a maximum of 26 weeks' leave, which must be taken as a single continuous period.

Whether APL is paid depends on whether or not the underlying ML period would have been paid. Additional statutory paternity pay is paid on the same basis and at the same rate as SMP. If a mother has been on ML for 39 weeks before returning to work and has exhausted her entitlement to SMP, any period of APL would be unpaid. Under the Regulations, employers who provide enhanced maternity pay need not replicate the payment structure for APL, although some commentators have suggested that the European Court of Justice may wish to look at this discrepancy.

There are detailed notification requirements prior to taking APL. The additional cover must give their employer at least eight weeks’ notice of their intention to take APL and provide:

1. the expected and actual date of birth;
2. the nature of their relationship with the mother and the purpose of the APL; and
3. a declaration from the mother confirming her intended date of return, that the additional cover has responsibility for the child and that no-one else is taking APL in connection with the child.

The employer has the right to see the child’s birth certificate and be given information about the mother’s employer.

Like a woman on ML, the additional cover on APL has the right to return to their pre-existing role at the end of their leave and, in the event of a redundancy situation arising during APL, has the right to be offered any alternative roles in preference to other employees.

Many have voiced scepticism as to the likely take-up of the right to APL, with government estimates suggesting that it will probably be less than 10%. However, the government has indicated that it is going to overhaul the legislation relating to maternity and paternity leave and pay. Watch this space.

A version of this article was previously published in
The In House Lawyer magazine.