Your duties and responsibilities to your employees on paternity leave
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, including the introduction of Shared Parental Leave 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 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.
Previously, it was possible for your employee to also take additional paternity leave (APL) up until 2015. This has since been replaced by the system of Shared Parental Leave in 2015.
During ordinary paternity leave your employee is entitled to receive all their contractual entitlements with the exception of remuneration.
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 £151.97, or 90% of average weekly earnings (whichever is lower).
An employer who has made payments of statutory paternity pay is entitled to recover these from HMRC:
Your employees may be eligible for Shared Parental Leave as, since 2015, mothers have been able to transfer up to 50 weeks of their maternity leave to be shared with their partner. They are also able to convert up to 37 weeks of their statutory maternity pay.
Two tests must be satisfied in order for your employee to be eligible for Shared Parental Leave. First, your employee must satisfy the ‘continuity of employment test’. To do so, by the end of the 15th week before the due date they must have been employed for 26 weeks and they must also still be working at the start of each leave period.
The employment and earning test must also be met within the 66 weeks leading up to the due date by your employee having worked at least 26 of these weeks and having earned at least £30 a week on average in any 13 of these weeks.
Your employee may be required to provide up to five notices to you as the employer. To book Shared Parental Leave, your employee must notify you at least 8 weeks before the start date of the first period of SPL.
Your employee’s partner cannot take SPL until she has completed her two week compulsory maternity leave. It is recommended that your employee takes their Ordinary Paternity Leave before taking SPL as otherwise they will lose their OPL entitlement. Otherwise, SPL may be taken at any time from the date of the birth up until the day before the child’s first birthday.
A father on Shared Parental Leave is entitled to take up to 20 keeping-in-touch days or “SPLIT days”. However, your employee cannot insist on being given SPLIT days and neither can you require them to work any.
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.
Where a redundancy situation means it is not practical to continue to employ your employee on shared parental 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.
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.
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