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Factsheet: Paternity Rights For Employees

Understanding your workplace rights as a new father.

  1. Paternity Leave
  2. Paternity Pay
  3. Keeping in Touch
  4. Rights on Return to Work
  5. Redundancy
  6. Protection from Detriment and Dismissal (OPL and APL)

An increasing number of fathers are choosing to take paternity leave in order to care for a new arrival to the family or to provide support to their partners. Entitlements to time off and pay have changed over time and are due to change again when shared parental leave is introduced in 2015. Currently fathers and adopters are entitled to the following paternity leave and paternity pay.

Paternity Leave

Employees (and only employees) are entitled to take either one whole week or two consecutive weeks’ ordinary paternity leave (OPL) within 56 days of a child’s birth or placement for adoption as long as they meet certain eligibility criteria. The purpose of ordinary paternity leave is to enable the employee to care for the child, or to support the child’s mother or adopter.

To be entitled you must have sufficient service with your employer, be in one of the specified relationships with either the child or the child’s mother or adopter, and have responsibility for the child’s upbringing (or be expecting to do so). Sufficient service is at least 26 weeks at a particular point before the birth is due or adoption is notified. The relationship has to be either the father of the child or the spouse, civil partner or partner of its mother. You must tell your employer, at least 15 weeks before the week the baby is expected, the baby’s due date, when you want your leave to start (e.g. the day of the birth or the week after the birth) and if you want 1 or 2 weeks’ leave. Your employer can ask for this in writing.

Additional paternity leave (APL) was introduced in 2011. It has similar eligibility requirements but you must also still be in continuous employment with your employer in the week before the first week of the additional paternity leave. It entitles you to one period of additional paternity leave which must be taken to care for the child, taken in multiples of complete weeks and lasting between two weeks and 26 weeks. The period of additional paternity leave must be taken within a “window” that starts 20 weeks after, and ends 12 months after, the child’s date of birth or placement for adoption and is dependent on your spouse, civil partner or partner having returned to work from their statutory maternity or adoption leave.

You and your partner must comply with notice and evidence requirements at least eight weeks before the date on which you wish your additional paternity leave to start. In birth cases you must give your employer:

  • A written “leave notice” specifying:
    • the week which was the child’s expected week of childbirth (EWC)
    • the child’s date of birth; &
    • your chosen start and finish dates for their period of additional paternity leave
  • A signed “employee declaration” stating that:
    • the purpose of their additional paternity leave will be to care for the child
    • you are either the child’s father or married to, the partner or civil partner of the child’s mother; and that
    • you have, or expect to have, the main responsibility (apart from that of the child’s mother) for bringing up the child
  • A written “mother declaration” from the child’s mother stating:
    • the mother’s name, address and national insurance number
    • the date on which she intends to return to work
    • that you are either the child’s father or are their spouse, partner or civil partner and has, or expects to have, the main responsibility (apart from the child’s mother) for bringing up the child
    • that to her knowledge you are the only person exercising the entitlement to additional paternity leave in respect of the child; and that
    • she consents to the employer processing the information that she has provided in the declaration

Your employer should respond within 28 days of receiving your notice to confirm the dates in writing and may request a copy of the child’s birth certificate and the name and address of the mother’s employer, that you must provide within a further 28 days. Similar notice requirements exist for adopters.

During ordinary paternity leave or additional paternity leave you are entitled to receive all your contractual entitlements with the exception of remuneration.

If you want to return early then you should give at least six weeks’ notice of when you wish to come back to work. If you do not give six weeks’ notice – and where it is “not reasonably practicable” for your employer to welcome you back sooner – then your employer can require you to take the six weeks’ leave.

Paternity Pay

Employees who take ordinary paternity leave following the birth or adoption of a child will, if they meet the eligibility and notice requirements which are similar to those set out above, be entitled to ordinary statutory paternity pay (OSPP). In addition, you must be receiving pay that is not less than the lower earnings limit for national insurance purposes. It is paid for one or two weeks at £136.78, or 90% of average weekly earnings (whichever is lower).

Additional paternity pay (ASPP) will be paid during the additional paternity leave subject to further similar eligibility and notice requirements. In addition, the child’s mother or adopter must also satisfy certain criteria:

  • They must have been entitled to statutory maternity, maternity allowance or adoption pay as a result of the child’s birth or adoption
  • They must have returned to work at least two weeks before the end of their statutory maternity or adoption pay period

It is payable for up to 26 weeks which must occur between the 20th week after the birth/adoption and must end after 52 weeks or at the end of the maternity allowance/maternity pay/adoption pay period whichever is earlier. It is paid at £136.78, or 90% of average weekly earnings (whichever is lower)

Keeping in Touch

A father taking additional paternity leave is entitled to take up to ten “Keeping In Touch” Days or “KIT days”. However, you cannot insist on being given KIT days, neither can your employer require you to work for them.

Rights on Return to Work

If you have exercised your right to take ordinary paternity leave or additional paternity leave, you usually have the right to return to the same job that you were employed to do, immediately prior to taking this leave.

Redundancy

Where a redundancy situation means it is not practical for your employer to continue to employ you on additional paternity leave under your existing contract of employment, you must be offered any suitable alternative vacancy and be given priority over and above any another employee who is also at risk of redundancy but not on maternity leave. This can be with an associated company. Your new terms and conditions must not be substantially less favourable than those in your previous contract. These provisions effectively give you priority over other employees in the redundancy exercise and puts you in a similar position to women on maternity leave, when a redundancy exercise takes place.

Protection from detriment and dismissal (OPL and APL)

You are protected from detrimental treatment and dismissal for reasons connected with your rights to ordinary paternity leave and additional paternity leave. There is no minimum qualifying service period.

There are some additional rules regarding adoption, especially from abroad. Further details are on the gov.uk website.

To speak to an expert employment lawyer, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

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