Factsheet: Fathers Rights

April 2006

This factsheet is for parents of babies due on or after 6 th April 2006, even if the baby was born before then. It does not cover paternity leave for adoptions. If you or your partner are adopting a child, see our Adoption factsheet for more specific information.

If you are an employee, you may have a legal right to paternity leave. If you are eligible, you have a right to one week or two consecutive weeks of leave from work following birth. You may also be entitled to statutory paternity pay during your leave.

Your employer may give you better rights to paternity leave and pay under your contract. If so, you can use these. Your employer cannot stop you from using your rights under the law (statutory rights) if these are better, or you can use a mixture of contractual and statutory rights if this gives you the best outcome.

If you are self-employed, you do not have a right to paternity leave or pay. You can take unpaid leave if you choose to do so, but there are no benefits you can claim for paternity leave. If you are not an employee, but you work for an agency or on a freelance basis, and tax and NI are deducted before you get paid, then you can claim statutory paternity pay, as long as you earn enough (see below). You do not have the right to paternity leave however, which means that after your time on statutory paternity pay you do not have the right to return to the same job.

Who can take paternity leave?

In order to be eligible employees must:

• have or expect to have responsibility for the child’s upbringing,
• be the biological father of the child or the mother’s husband, civil partner or partner,
• have worked continuously for their employer for 26 weeks by the end of the 15 th week before the baby is due (see below)
• and
• still be employed by the employer on the day the child is born.

To work out the 15 th week before the baby is due, take the Sunday before the due date and count back 15 Sundays (not including the one before the baby is due). This is the start of the 15 th week, known as the qualifying week. As a rough guide, if you have worked for your employer since before the mother got pregnant, you will meet the continuous employment test. However, it is useful to know the qualifying week as it affects lots of other rights, including when you give notice.

Paternity leave can be taken by more than one person for the same baby, if the biological father and the mother’s partner are both eligible.

If you are not married or in a civil partnership with the mother, you count as her partner if you live with her in an ‘enduring family relationship’, but you are not a close blood relative. This applies to opposite sex and same sex partners.

When can leave be taken

You should give your employer notice to take your leave (see sample letter). You can choose to take one or two consecutive weeks. You do not have a legal right to take paternity leave in days or in two separate weeks, but if you need to do this, you can always ask your employer if it is possible.

Leave can be taken:

• from the date of the baby’s birth, whenever that takes place
• from a chosen number of weeks after the date of the baby’s birth (whenever it is born) or
• from a chosen date which falls at any point after the due date, as long as the leave is completed within 56 days of the birth (but see below for premature babies).

Leave can start on any day of the week but must usually be completed within 56 days of the actual birth. However, if the baby is born early, leave must be completed within the period from the actual date of birth up to 56 days after the expected week of birth. This means that parents of premature babies have a longer period after the birth in which to take paternity leave. If you are working on the day that the baby is born, and you have said you want your leave to begin from the birth, your leave will start the next day.

There is only one period of leave available even if more than one child is being born. If a baby is stillborn after 24 weeks, or is born alive at any time but then dies, you have the right to take paternity leave as usual.

Notice period for leave

You should inform your employer of your intention to take paternity leave by the fifteenth week before the baby is expected, unless this is not reasonably practicable. If you have missed this deadline, inform your employer as soon as possible, and explain why you did not give notice earlier. An employer will usually accept a delay in giving notice. For what to include in your notice, see below. It is usually convenient to give notice to claim statutory paternity pay at the same time (see sample letter).

Pay

Most employees who are entitled to paternity leave will also be entitled to Statutory Paternity Pay (SPP). It is paid at a rate of £108.85 per week or 90% of average weekly earnings if this is less. Average weekly earnings are based on your earnings in the eight weeks ending with the 15th week before the baby is due. If you are paid monthly, it is usually based on the last two pay dates before the end of the 15 th week. However, if your average weekly earnings in this period are less than the lower earnings limit (currently £84 a week), you will not qualify.

An employer cannot pay SPP without a written declaration that the employee meets the conditions, including that they will be responsible for the baby’s upbringing (see sample letter).

Notice period for pay

You are required to give 28 days notice of the date from which you want your SPP to start. It is usually convenient to give notice for leave and pay at the same time (by the end of the 15 th week before the baby is due). If you cannot give 28 days notice, for instance because the birth was premature, you must give notice as soon as reasonably possible and explain why there has been a delay. Your employer will usually still be able to pay you.

If your employer decides you are not entitled to SPP, they should give you a written decision within 28 days. If they do not give you a decision, or you think the decision is wrong, you can ask the Revenue (Her Majesty’s Revenue and Customs or HMRC) to make a decision for you.

Managing financially during paternity leave

Additional financial help for your family may be available from Income Support, Housing Benefit, Council Tax Benefit, Tax Credits, or a Sure Start Maternity Grant. If you are entitled to paternity leave, but your employer does not pay you anything (because you do not earn enough), you may be able to claim Income Support. Income Support may also be payable if, immediately before your paternity leave, you are getting Housing Benefit, Council Tax Benefit, Working Tax Credit, or Child Tax Credit of more than the family element, but in this case you can only get Income Support if your paternity pay and other income is low enough. If you want more advice about this, you can call the Working Families helpline.

If you are entitled to SPP, but are concerned that it will not be enough to support your family whilst you are on paternity leave, you might consider taking some annual leave around the birth of the child instead. This means that you would receive full pay. You should discuss taking annual leave with your employer in the usual way.

How to give notice for leave and pay

Written notice for leave and pay can be given together by the end of the 15 th week before the baby is due. If you have not given notice by this date, give it as soon as possible. Your employer may ask to you to use form SC3, which is provided by Her Majesty’s Revenue and Customs (HMRC), or to use the employer’s own version of the form, but your notice does not have to be on a form, as long as you give all the information required (see sample letter). If you want to use form SC3 to make sure you include all the required information, but your employer has not given you a form, you can ask your employer or find it on the HMRC website.

For leave you must state:

• When the baby is expected to be born (or the date of birth if the baby has already been born),
• Whether you want to take one or two weeks leave AND
• When you want your leave to start.

For pay you must also state:

• Whether you want to receive one or two weeks’ Statutory Paternity Pay and when you want your pay to start AND
• That you are the baby’s father/mother’s partner, will be responsible for the baby’s upbringing, and that you will care for the child or support the child’s mother whilst getting SPP.

If you are applying for your leave and pay after a baby is born (for example, because the child arrives early, or you did not realize you had to give advance notice), remember that you must also state the actual date of birth. If you have given notice to your employer to take leave from the child’s birth, or from a set number of days after this, then you should let them know when this happens.

Below is a sample letter for a birth child:

Other rights to take leave

In addition, there are two other legal rights which may be useful to fathers, Emergency Family Leave and Parental Leave. Please see our factsheet Time Off for more information on these.

Flexible Working

More and more fathers are requesting flexible working so they can better balance work with family life. If you are interested in requesting a flexible working pattern then see our Flexible Working factsheet or call our helpline.

Taking Matters further

You employer should not prevent you from taking leave, or from trying to use your rights in circumstances where you are entitled to them. You must also not be subject to less favourable treatment by your employer because you have taken leave or tried to use rights to which you are entitled.

If you want to take matters further because you have been treated less favourably, you should raise a formal grievance with your employer. This means that you tell them in writing the issues you are unhappy about. You may not make most claims in the Employment Tribunal (and you may face a financial penalty if a case reaches the Tribunal) if you have not first raised a formal grievance and waited 28 days. The legislation says that, in most cases, and at the minimum, you must:

• put the reasons for the grievance in writing to your employer,
• meet and discuss the complaint if your employer arranges a meeting
• appeal internally (to your employer) if you are not satisfied with any decision your employer makes after the meeting.

You should use your employer's grievance procedure, if there is one, provided that it is similar to the minimum process described above. Further information on the grievance legislation is available at www.dti.gov.uk/resolvingdisputes.

If you are dismissed because you have asserted a right, then you should appeal against your dismissal in your employer's disciplinary procedure. If you cannot appeal because your employer has not used a disciplinary procedure or the appeal is unsuccessful you can bring a tribunal claim.

Normally, you must make your claim to the Tribunal within 3 months less one day from the date that you were refused your request for leave, treated less favourably or dismissed. This deadline is extended by three months in some cases of less favourable treatment if you make a written grievance within the normal time limit for making a claim. However, an extension of the deadline cannot be obtained for all types of claims - therefore the safest course of action is to raise your grievance within 2 months of the event you wish to complaint about, wait 28 days then submit your Employment Tribunal claim within 3 months of the event in question.

Before making a claim we advise that you seek the advice of a solicitor or your trade union. If you are not a member of a union you will have to fund the case yourself. You may have cover for legal costs as part of your home insurance or you may be able to find a solicitor who works on a "no win, no fee basis".

Tribunals do not normally make one side pay the other's costs. However, they can do this where a claim never had any chance of succeeding or where bringing a claim was "vexatious". One reason it is important to have a qualified legal representative is that they will be able to advise on this.

In disputes about SPP, if your employer refuses to pay or fails to make a decision, or you disagree with the amount of your SPP, you can ask HMRC to make a formal decision on your entitlement. You can ask about this at your local Revenue enquiry centre (see telephone directory or HMRC website).

Useful contacts

Working Families

1-3 Berry St, London, EC1V 0AA
Helpline: 0800 013 0313

Orderline for free factsheets: Kate Aresti on 020 253 7243

Waving not drowning project for parents of disabled children: Janet Mearns on 020 7253 7243

General enquiries: office@workingfamilies.org.uk

Online guide to flexible working and free factsheets at: www.workingfamilies.org.uk

Registered Charity No 1099808

Company No 4727690

Working Families has published Daddy’s Home – a life planner for fathers which offers advice and case studies from real dads who have changed their working patterns

Equal Opportunities Commission
offers advice and publications on sex discrimination and how to bring your case to an employment tribunal.
Advice line: 0845 601 5901
Email: info@eoc.org.uk or
visit the website at www.eoc.org.uk

Fathers Direct
Call 0845 634 1328 or
email mail@fathersdirect.com.
Visit their website on www.fathersdirect.com

Citizens Advice Bureau
You can find out where your nearest Citizens Advice Bureau is through the National Association of Citizens Advice Bureaux www.nacab.org.uk. Advice from the CAB is available at www.adviceguide.org.uk

ACAS

Free advice line giving employment law advice

Telephone: 0845 747 47 47
www.acas.org.uk

Community Legal Service (Directory)

For finding a solicitor with the CLS quality mark in your area

Telephone: 0845 608 11 22
www.justask.org.uk

Employment Tribunal Enquiry Line

Telephone orderline: 0845 795 9775
www.ets.gov.uk

Law Centres Federation

To find out if there is a free legal advice centre in your area

0207 387 8570
www.lawcentres.org.uk

Her Majesty’s Revenue and Customs (HMRC)

www.hmrc.gov.uk

The advice given in this factsheet is accurate at April 2006. It may not be accurate after that date.

Working Families operates a complaints procedure to ensure any complaints are dealt with thoroughly and fairly. If you would like to have details of the procedure or to make a complaint please contact the Chief Executive at Working Families.

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