21 November 2014

Paternity leave and pay


Meriel Schindler
Partner | UK

Ordinary paternity leave is available to eligible male and female employees following the birth or adoption of a child. Eligible employees are entitled to one or two consecutive weeks’ statutory paternity leave. Paternity leave cannot be taken in two or more separate periods.

Ordinary paternity leave as set out below will continue to run in parallel with the new shared parental leave regime.

In order to exercise the right, an employee must satisfy eligibility criteria, which vary slightly according to whether the right is exercised in relation to a birth or an adoption. The criteria is set out bellow.

Birth – the employee must:

  • Have been continuously employed by the employer for not less than 26 weeks ending with the week immediately prior to the 14th week before the child’s expected week of childbirth (‘EWC’).
  • Be the father of the child / be married to (or civil partner of) or otherwise the ‘partner’ of the mother. Partner is defined as someone in an enduring family relationship.
  • Have, or expect to have, responsibility for the upbringing of the child, if the employee is the child’s biological father. Alternatively, if they are married to (or the civil partner of) or otherwise the partner of the child’s mother, have, or expect to have, principal responsibility for the upbringing of the child (aside from that of the child’s mother).
  • Satisfy the relevant notice requirements (see below) and seek the absence for the purpose of caring for the child, or supporting the mother of the child in caring for the child.

Adoption – the employee must:

  • Have been continuously employed by the employer for not less than 26 weeks ending with the week immediately prior to the week in which the child’s adopter is notified of having been matched with a child for adoption.
  • Be married to (or the civil partner of) or otherwise the partner of the child’s adopter. Partner is defined as someone in an enduring family relationship.
  • Have, or expect to have, the main responsibility (other than that of the adopter) for the upbringing of the child.
  • Satisfy the relevant notice requirements (see below) and seek the absence for the purpose of caring for the child, or supporting the mother of the child in caring for the child.

It is for the employee to choose when to take his/her period of paternity leave, however, the employee must take the leave between the date on which the child is born / placed with the adopter, and the date falling 56 days later. The leave cannot be taken before the birth or placement.

As with the eligibility requirements, the notice requirements for an employee seeking to exercise his/her paternity leave rights vary slightly according to whether they relate to a birth or an adoption, summarised below.

Birth

  • The employee’s notice must state:
    (a) the EWC;
    (b) the length of the leave period to be taken; and
    © the date on which the leave is to commence.
  • Notice must be provided not later than the 15th week prior to the EWC or, if it is not reasonably practicable for the employee to comply with this timing, as soon as it is reasonably practicable.
  • The employee is entitled to change their proposed start date for taking paternity leave. The notice requirements for changes vary depending on whether the employee seeks to take leave from the date of birth, from a date set a number of days after birth, or from another predetermined date.

Adoption

  • The employee’s notice must state:
    (a) the date when the adopter was notified of having been matched with the specific child together with the date on which the child is expected to be placed with the adopter;
    (b) the length of the leave period to be taken; and
    © the date on which the leave is to commence.
  • Notice must be provided no more than 7 days after the date on which the adopter is notified of their match with the child. However, if it is not reasonably practicable for the employee to comply with this timing, they must provide the information as soon as it is reasonably practicable to do so.
  • The employee is entitled to change their proposed start date for taking paternity leave. The notice requirements for changes vary depending on whether the employee seeks to take leave from the date of birth, from a date set a number of days after birth, or from another predetermined date.

Terms and conditions during leave and return to work

While on paternity leave an employee remains bound by the terms and conditions in the contract of employment and remains entitled to contractual benefits, save those relating to remuneration.

Employers are however obliged to maintain pension contributions at the employee’s normal rate of pay throughout any period of paternity leave during which the employee is receiving paternity pay. Any contributions the employee makes will be based on the amount of any statutory paternity pay the employee is receiving, unless the employee wishes to make up the shortfall.

The employee is entitled to return to the same job as he or she was performing before the leave. An employee who does not want to return to work should give notice of resignation in accordance with the contract of employment.

Detriment, dismissal and redundancy

Employees who take or ask to take ordinary paternity leave are protected from suffering any detriment or dismissal as a result. Employees on paternity leave are also given priority in a redundancy situation where there is a suitable alternative role available.

Statutory paternity pay (‘SPP’)

Statutory paternity pay (‘SPP’) is payable provided the employee has 26 weeks’ service and has high enough earnings. SPP is payable for a period of one or two consecutive weeks within the ‘qualifying period’, which begins with the date of childbirth, or, in an adoption case, with the date of the child’s placement for adoption and ends 56 days after that date. The current weekly rate of SPP, which applies to both birth and adoption cases, is the lesser of a specified weekly rate that is revised each year (currently £138.18 for the tax year 2014/15) and 90% of normal weekly earnings.

SPP is a state payment paid by employers and then recouped as against national insurance contributions.

What is happening to additional paternity leave and pay?

Existing rights to additional paternity leave and pay will cease in relation to babies born or adopted on or after 5 April 2015.
Take up of additional paternity leave and pay has been very low since its introduction in 2010. We do not therefore deal with it in any detail in this note.

Further information can however be found on the Withers employment rights website  and on the Government’s Employer Guide on Additional Paternity Leave and Pay.

Meriel Schindler Partner | London

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