Understanding your workplace rights as a new parent
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.
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.
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 £156.66, or 90% of average weekly earnings (whichever is lower).
Shared Parental Leave was introduced in 2015 and enables mothers to convert up to 50 weeks of their maternity leave, in addition to 37 weeks of their statutory maternity pay, into Shared Parental Leave (SPL) and pay, to be shared with you, their partner.
You are likely to be eligible for SPL if you satisfy the two tests. The ‘continuity of employment test’ means that you have been employed for 26 weeks by the end of the 15th week before the week the baby is due. You must also still be working at the start of each period of leave.
The second test is the employment and earnings test which must be satisfied by your partner. They must have worked for at least 26 weeks, earning, on average, at least £30 a week in any 13 weeks within the 66 weeks leading up to the due date.
To take SPL, you may need to submit up to five notices to your employer. Also, your partner is required to provide at least 8 weeks’ notice to convert her statutory maternity leave. Similarly, you must provide 8 weeks’ notice before the start date of the first period of leave.
Before taking SPL, your partner must complete her two weeks of compulsory maternity leave. It is recommended that you take Ordinary Paternity Leave before taking SPL as, otherwise, you will lose your entitlement to OPL. Aside from this, SPL may be taken at any time, from the date of birth to the day before the child’s first birthday.
During SPL, you may have up to 20 SPL keeping-in-touch days, known as SPLIT days, without bringing your leave to an end. This is additional to the ten days that a mother may take. Your employer is not obliged to agree to SPL and keeping-in-touch days.
If you have exercised your right to take ordinary 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. If you have taken SPL, you have the right to return to the same job if the total amount of leave taken is less than 26 weeks. If it exceeds this amount, or if the SPL immediately followed a period of unpaid parental leave of more than four weeks, you have the right to return to the same job. However, if this is not practicable, you have a right to a job that is suitable and appropriate in light of the nature of the work set out in your employment contract, capacity and place of work.
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.
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.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2024