18 March 2019 - Article
New laws permitting qualifying employees to take extended periods of paid paternity leave are brought into effect today. The new rights will be available where the expected week of birth (or, in an adoption case, the adoption match) falls on or after 3 April 2011.
The new rights to pay and leave are available subject to certain conditions:
- The employee must have 26 weeks’ continuous employment at the ‘qualifying week’. In a birth case, the qualifying week is the fifteenth week before the week in which the baby is due; in an adoption case, it is the week in which the adoption match takes place.
- In a birth case, the employee must be either: the father of the child (with responsibility for the child’s upbringing); or the partner (of either sex) of the mother (with the main responsibility, apart from that of the mother, for the child’s upbringing). In an adoption case, the employee must be the adopter’s partner (with the main responsibility, apart from that of the adopter, for the child’s upbringing). Where both members of the couple adopt, only the one who has not chosen to take adoption leave may take paternity leave.
- Both the employee and the mother (or primary adopter) must comply with notice and evidential requirements, including a ‘certificate’ from the mother (or primary adopter) confirming their own entitlement to statutory pay or leave and the relationship with the employee seeking additional paternity leave.
- The mother (or primary adopter) must have returned to work before exhausting their entitlement to maternity leave (or adoption leave). The right to additional paternity leave only crystallises on the mother’s (or primary adopter’s) return to work, but the leave need not be taken immediately; a gap is permitted.
The employee may take additional paternity leave only in the period beginning 20 weeks after the birth (or placement for adoption) and ending 12 months after the birth (or placement for adoption). The purpose of the leave must be to care for the child.
The employee may take between 2 and 26 weeks’ additional paternity leave. It must be taken in complete weeks and as one period.
If the leave is taken before the end of the mother’s maternity pay period (or primary adopter’s adoption pay period), part of it may be paid. Payment is at the same prescribed weekly rate as ordinary paternity pay (£124.88 in 2010/11 but a revised rate will apply once the new right comes into effect) and is subject to the same minimum earnings requirement.
Once the employer has received the employee’s notice (at least 8 weeks before the intended start of the leave), it must confirm in writing (within 4 weeks) the start and end dates of the leave. The employer may request certain additional information (to satisfy itself regarding the employee’s eligibility) if it wishes.
There are specific rules where the employee wishes to vary the dates of leave or cancel it.
More generous entitlements will apply if the mother (or primary adopter) dies.
Guidance on the new rights will be put in place before 3 April 2011 to ensure that employers and employees are aware of the changes and have sufficient information about them.