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Martin Searle Solicitors

Factsheet: Understanding Paternity Rights

Your duties and responsibilities to your employees on paternity leave.

  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 your employee must have sufficient service with you, 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. They must tell you, at least 15 weeks before the week the baby is expected, the baby’s due date, when they want their leave to start (e.g. the day of the birth or the week after the birth) and if they want 1 or 2 weeks’ leave. You can ask for this in writing.

Additional paternity leave (APL) was introduced in 2011. It has similar eligibility requirements but your employee must also still be in continuous employment with you in the week before the first week of the additional paternity leave. It entitles them 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 employee’s spouse, civil partner or partner having returned to work from their statutory maternity or adoption leave.

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

  • A written “leave notice” specifying:
    • the week which was the child’s expected week of childbirth (EWC)
    • the child’s date of birth; &
    • your employee’s 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
    • your employee is either the child’s father or married to, the partner or civil partner of the child’s mother; and that
    • your employee has, or expects 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 your employee is 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 they are the only person exercising the entitlement to additional paternity leave in respect of the child; and that
    • she consents to you processing the information that she has provided in the declaration

You should respond within 28 days of receiving the 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 they must provide within a further 28 days. Similar notice requirements exist for adopters.

During ordinary paternity leave or additional paternity leave your employee is entitled to receive all their contractual entitlements with the exception of remuneration.

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

An employer who has made payments of either ordinary statutory paternity pay or additional statutory paternity pay is entitled to recover these from HMRC:

  • 92% of the payments, unless they qualify for small employer’s relief.
  • Where you qualify for small employer’s relief, an amount equal to:
    • the total OSPP or ASPP paid; &
    • an additional amount equal to the amount to which the employer would have been entitled had the payment been a payment of statutory maternity pay

Keeping in Touch

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

Rights on Return to Work

An employee who has exercised their right to take ordinary paternity leave or additional paternity leave usually has the right to return to the same job that they were employed to do immediately prior to taking the leave.

Redundancy

Where a redundancy situation means it is not practical to continue to employ your employee on additional paternity leave under their existing contract of employment, they must be offered any suitable alternative vacancy and should 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 employee’s terms and conditions must not be substantially less favourable than those of the previous contract. These provisions effectively give your employee priority over other employees in the redundancy exercise and puts them in a similar position to women on maternity leave when a redundancy exercise takes place.

Protection from detriment and dismissal (OPL and APL)

Your employee is protected from detrimental treatment and dismissal for reasons connected with their 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.

For legal advice on paternity rights at work, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

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