Paternity Leave Obligations

Guidance for SMEs

Eligibility

Any employee satisfying the following conditions will be eligible for Paternity Leave and Pay:

• They have or expect to have responsibility for the child’s upbringing

• They are the biological father of the child or the mother’s husband or partner

• They are adopting a child or the partner of someone adopting a child and they are not taking Statutory Adoption Leave (SAL)

• They must have worked continuously for their employer for at least 26 weeks ending with the 15th week before the baby is due (at least 26 weeks of service by the week of notification of being matched with a child, in the case of adoption)

• They have complied with an employers request to complete a declaration that they are entitled to take paternity leave

• They have given the employer the appropriate notice

Employers could therefore receive requests from mothers where a father is taking Statutory Adoption Leave, and employees in same sex relationships.

Length of Paternity Leave

Leave must be taken in blocks of either one week or two consecutive weeks’ paternity leave. It cannot be taken as individual days. Only one period of leave is available to employees irrespective of whether more than one child is born or adopted.

1. In childbirth

Leave can be taken 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 late than expected); or from a chosen date later than the first day of the week in which the baby is expected to be born.

Paternity Leave must be taken and used within 56 days of the actual date of birth of the child. However, if a child is born prematurely, the period in which leave can be taken is extended to end 56 days after the Expected Week of Childbirth (EWC). If a child is stillborn after 24 weeks of pregnancy, the employee is entitled to paternity leave. This is also the case when the child is born alive at any stage in pregnancy but then dies.

2. In adoption

Adoptive parents can choose to start their leave from the date of the child’s placement (whether this is earlier or later than expected); or from a chosen number of days or weeks after the date of the child’s placement (whether this is earlier or later than expected); or from a chosen date.

Leave can start on any day of the week on or following the child’s placement but must be completed within 56 days of the child’s placement.

Statutory Paternity Pay

The rate of Statutory Paternity Pay (SPP) is currently the same as the flat rate of Statutory Maternity Pay, that is £108.85 per week (2006/7).

During their paternity leave, most employees will be eligible to claim Statutory Paternity Pay (SPP) from their employers. Employees who have average weekly earnings below the Lowe Earnings Limit for National Insurance purposes (£84 per week in 2006/7) do not qualify for SPP. However, they may be able to get Income Support while of Paternity Leave.

Additional financial support may be available through Housing Benefit, Council Tax Benefit, Tax Credits or a Sure Start Maternity Grant. Further information is available from your local Jobcentre Plus office.

How much can employers claim back?

Employers can currently claim back 92% of the payments they make, with those eligible for small employers relief able to claim 100% plus an additional 4.5% amount in compensation for the employers portion of National Insurance contributions paid on SPP. In addition, employers who need to can get funding in advance for payments of SPP from the Inland Revenue.

Taking Paternity Leave – How should it work?

An employee should inform you they want to take paternity leave by the end of the fifteenth week before the Expected Week of Childbirth (EWC). In the case of adoption, an employee should inform you no more than seven weeks after the matching certificate is issued, unless it is not reasonable practicable. If they are adopting a child they must notify you that they have been matched and are not taking statutory adoption leave (see the WORKING FAMILIES Factsheet on Adoption Leave Obligations).

They must inform you of:

• the week the baby is due, or expected placement week, in the case of adoption
• whether they wish to take one or two weeks’ leave
• when they want their leave to start

An employee can change their mind about the date on which they want their leave to start by providing 28 days notice.

On receiving a request for paternity leave, you should ask the employee who has not already done so to complete declaration of their entitlement (see above). This will ensure that you have met your obligations that the employees are eligible. It is not your responsibility to carry out any further investigations or checks.

There is a model self certificate form on the DTI website www.dti.gov.uk/er/paternity.htm and in the publication Working fathers – rights to leave and pay (PL517).

Contractual benefits

Employees remain entitled to their usual terms and conditions of employment except for wages or salary (unless their contract of employment provides otherwise), throughout their paternity leave. However, most employees will be entitled to SPP for this period. If the employee has a contractual right to paternity leave as well as the statutory right, he may take advantage of whichever is the most favourable. Any paternity pay to which he has a contractual right reduces the amount of SPP to which he is entitled.

Return to work after paternity leave

Employees are entitled to return to the same job following paternity leave.

Protection from detriment and dismissal

Employees are protected from suffering unfair treatment or dismissal for taking, or seeking to take, paternity leave. An employee has the right to take their case to Employment Tribunal if they believe that they have suffered any detriment or they have been dismissed because they have taken or sought to take paternity leave.

Paternity Leave
Good Practice Guidance for Employers

• Develop a guidance note or policy on paternity leave and circulate to employees.

• Tell employees who are going on maternity leave that their partners may be entitled to Paternity Leave.

• Some employees may want to take a longer period of leave. Explain to them how they can use Parental Leave or holiday entitlement to do this.

• If you already have a contractual paternity leave and pay scheme, consider using the savings from the introduction of SPP to extend the paid paternity leave period, or to introduce a childcare allowance (see Working Families Factsheet on Childcare Options).
  

A Factsheet of this nature can only provide general guidance. It should not be used as a substitute for independent legal advice. While every effort has been made to ensure the accuracy of its content, we cannot be held responsible for any errors.

June 2006

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