Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

Should employers offer enhanced paternity pay during APL?

Currently, an employee who wishes to take APL will only be entitled to have additional paternity pay (“APP”) if he/she takes this leave when the relevant child’s mother would have been entitled to Statutory Maternity Pay (“SMP”). In such cases they would be entitled to APP until the relevant employee’s entitlement runs out but this would be at the same rate as SMP (£128.73 a week, from 6 April 2011) or 90% of normal weekly earnings, (if lower). Employers are not obliged to pay enhanced paternity pay during APL.

However, what happens if the employer pays enhanced maternity pay to its female employees? Is the employer required to also pay enhanced paternity pay during APL? In its response to consultation on the regulations on APL, the Government stated that its view was that it was not necessary for employers to offer enhanced paternity pay where they offer enhanced maternity pay. The argument is presumably that since APL can be taken by employees of either sex, the comparator for a man taking APL, is a woman taking APL rather than a woman on maternity leave. As the woman would also not be entitled to receive enhanced paternity pay, then any such claim by the man should be capable of being defeated.

Employers might take comfort from the fact that to date there have been no successful challenges for enhanced pay by men taking ordinary paternity leave in circumstances where their employer offers enhanced maternity pay. However, we consider that this view may not be entirely correct. 

EU law recognises the special position of women taking maternity leave and has ruled that it is not discriminatory on grounds of sex to afford a woman a benefit while on maternity leave where no equivalent benefit is available to a man, since her special position whilst on maternity leave is not comparable to that of a man or a woman at work. UK law similarly protects women who are pregnant and/or on maternity leave by affording them special protection to protect their biological condition and/or also to protect the special relationship between a mother and her child.This is enshrined in the Equality Act where in s13(6) it states in a case of sex discrimination, “…no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth”.

If it has now become arguable that the benefit concerned (i.e. any enhanced maternity pay covering any period beginning 20 weeks after the birth) is given for the purpose of helping in the upbringing of the child, rather than specifically in connection with pregnancy or childbirth, then can a father who is not provided with enhanced paternity pay legitimately compare himself with a woman who is in receipt of enhanced maternity pay, during the proportion of maternity leave which she can now swap with her partner?

In light of the CJEU’s ruling in the Roca case, where employers offer enhanced maternity pay during Additional Maternity Leave (“AML”), employees might try to argue that as a proportion of maternity leave can be swapped for APL so that the father, rather than the mother, can look after the child, this leave can no longer be strictly associated with or linked to the special relationship between a mother and her child and the biological condition after pregnancy to care for her child. This argument is further substantiated by the fact that the APL regulations have been introduced partly as the Government described “to create increased opportunities and flexibility to allow parents to find an appropriate balance between work and family responsibilities through the introduction of an additional entitlement for families, allowing fathers to spend more time with their children”. It can be argued that APL satisfies an equivalent purpose. On this basis, there seems to be an argument that failure to pay men enhanced paternity pay during APL on an equivalent basis to any enhanced maternity payment made to female employees from 20 weeks after the birth is sex discriminatory.   

It is unlikely that this argument will be applicable where an employer only offers enhanced maternity pay during the first 20 weeks of maternity leave after the birth. This is because, this leave comprises compulsory maternity leave where the female employee is not allowed to go back to work and APL cannot begin until 20 weeks after the child is born. Therefore, it is logical that this leave is still linked to protecting the biological condition of the mother after pregnancy and childbirth.

Given that this legislation has just come into force and will only impact the fathers of babies due on or after 3 April 2011 or were notified of a match for adoption on or after 3 April 2011, we will not know where the boundaries lie until a test case is brought before an Employment Tribunal. Therefore at present, the law is uncertain and there is no guidance from the Tribunals to assist us.

What should employers do?

As this has a greater chance of affecting those employers who offer enhanced maternity pay for a period which extends beyond the first 20 weeks after the birth, those employers who offer only shorter periods of enhanced maternity pay, may wish to wait to see if Tribunals offer guidance on the law in this area before deciding whatever to offer enhanced paternity pay.

Those employers offering more generous enhanced maternity pay schemes may wish to consider the following options:

1. “Wait and see” – As we have already mentioned, given that this is a recent change, there is currently no specific guidance available from the Courts or Tribunals. Employers may therefore wish to wait to see what the Courts or Tribunal decide if and when a claim is brought. This approach does of course expose you to the risk that one of your own employees may bring a claim, and it may cause employee relations issues as fathers may become disgruntled when they are told, or discover, that the employer is not treating them as they are not entitled to the same benefits as their female counterparts.
2. Offer some enhanced paternity benefits – In light of these changes, employers may wish to offer the some enhancement to paternity pay. It may not always be easy to decide over what period of APL you should afford these benefits. This will depend on the extent of the enhanced maternity benefits offered. Given that maternity leave can begin up to 11 weeks before birth, an employee could potentially have exhausted most of her enhanced maternity pay shortly after the birth, and in most cases before 20 weeks after the birth. The longer the period of enhanced maternity pay, the more it is arguable that the purpose of the pay is for child care rather than for the protection of the woman in pregnancy and childbirth. An employer who offers perhaps more than 5 months enhanced maternity pay may therefore consider offering fathers at least some enhanced paternity pay to avoid the risk of possible sex discrimination claims. 
3. Reduce the benefits given for AML – An alternative option would be to reduce the benefits which an employer gives for AML e.g. by deciding not to offer any enhanced benefits to employee during this period and limit it only to a maximum of 20 weeks. This will not be easy if the enhanced maternity scheme forms part of the employee’s contractual terms and conditions of employment since a unilateral variation of contract of this nature, without the employee’s consent would constitute a repudiatory breach entitling the employee to resign and claim constructive dismissal. Where, however, the scheme is entirely discretionary, it should be possible. This issue is not always straightforward and it is best to take legal advice on how best to achieve any reduction in benefits if this is the route chosen.

In making the decision about which option to choose, employers will need to assess what they are currently offering at the moment and whether they are willing to offer equal benefits, bearing in mind the cost of doing so. In these difficult economic times and given the current uncertainty of the law, it seems likely that most employers will wish to adopt the “wait and see” approach.

Entitlement

• The old entitlement (above) will be re-named “ordinary paternity leave/pay” (OPL) but will otherwise remain unchanged.
• Those eligible for APL will be entitled to take a minimum of 2 weeks, and a maximum of 26 weeks, APL no earlier than 20 weeks after the child is born and ending no later than the child’s first birthday. APL must be taken in a continuous block but can be taken following a break after OPL.
• The mother must have returned to work before APL begins, but APL does not have to begin directly after the mother returns to work - there can be a break between the two.
• If APL is taken when the mother would still have been entitled to statutory maternity pay (SMP), additional statutory paternity pay (ASPP) will be paid to the father until the mother’s entitlement would have run out.

Eligibility

An employee will qualify for additional paternity leave and pay (APLP) if:

• his partner qualified for maternity leave, SMP, or maternity allowance and has returned to work before exhausting her entitlement;
• he is the child’s father, or is the husband or partner or civil partner of the child’s mother;
• he expects to have parental responsibility for the child and he is taking the leave to care for the child;
• he has been continuously employed by the same employer for a minimum of 26 weeks, ending 15 weeks before the EWC, and remains in the same employment until the week before he commences APL;
• in relation to ASPP he will only be eligible where his earnings are on average at least equal to the lower statutory earnings limit for NICs (295) during the 8 weeks prior to the EWC and at least two weeks’ of the mother’s maternity pay period is unexpired (i.e. maximum 37 weeks after maternity leave began).

Practical Application

• APLP will be based on a system of “self-certification” whereby mothers and fathers who wish to take up this entitlement must provide details of their eligibility to their respective employers.
• The father must give a minimum 8 weeks’ written notice of his intention to take APL which must be confirmed by the employer within 28 days of notice being given. The father must provide his employer with the following:

• A “leave notice” to include a) the EWC, b) the child’s date of birth, and c) the start and end dates for the period of APL (these can be modified if he provides at least 6 weeks’ notice).

• A signed “employee declaration” confirming that the purpose of the APL is to care for the child, that he is the child’s father, or is married to or is the partner or civil partner of the child’s mother, and that he (apart from the mother) will have the main responsibility for bringing up the child.

• A “mother declaration” to include a) the mother’s name, address and NI number, b) the date on which the mother intends to return from maternity, c) confirmation that the father has the status set out in the “employee declaration” and is the only person taking APL in respect of the child, and d) the mother’s consent to the father’s employer processing this information.

• There is no requirement on the father’s employer to check with the mother’s employer that she is eligible for SMP or that she has returned to work.
• The father’s employer can request the child’s birth certificate and details of the mother’s employer from their employee within 28 days of receiving the leave notice and the employee has 28 days to respond to this request. However, the legislation does not give the employer the power to enforce this request and there is no sanction for the employee not providing it.
• The father’s employer may request further information directly from the mother’s employer but there is no obligation on the mother’s employer to provide it.

An employer has asked the following: “Are the laws made by people with no understanding of the commercial pressures faced by business?”

• APLP will create an additional administrative burden (despite the self-certification system and the fact that statutory payments will be the same for APL as for OPL), particularly in male-dominated industries where employers are not accustomed to administering maternity leave and pay.
• Employers will be vulnerable to fraudulent claims and there is a lack of certainty regarding how this risk will be minimised, although the government’s intention is that an employer will not be penalised for administering claims in good faith.
• There is the potential for breaches of data protection laws if the mother’s employer provides information about the mother to the father’s employer, and if the father’s employer processes sensitive personal data about the mother.
• There is the possibility of equal pay and discrimination claims arising in cases where enhanced paternity pay is not consistent with enhanced maternity pay.

Considerations for your business

Your maternity and paternity policies will need updating by mid 2010 in light of this new legislation. Set out below are some points to consider when looking at your existing policies as well as some more general issues which may arise as a result of the new legislation.

• How high do you expect the take-up of the new right to be? The government estimates that it will be 4-8% of those eligible but are these figures accurate?
• How will you approach the difficulty of replacing absent employees on paternity leave?
• If you provide enhanced maternity benefits, will you provide enhanced paternity benefits as well? Or will you pay APP at the statutory rate? Or will you reduce the enhanced maternity benefits so that you pay both mothers and fathers at a lower or statutory rate (note the difficulty in making changes to existing contractual entitlements)?
• Given that there is no power to enforce a request to an employee to provide the child’s birth certificate and details of the mother’s employer, would disciplinary action for fathers who refuse to provide the information be appropriate?
• Will your practice be always to ask for this information or only in certain circumstances? How will you deal with potential data protection issues? If you only ask for extra information in certain cases, how will you minimise the risk of those employees alleging they have suffered a detriment?
• Consider how you will facilitate things such as Keeping In Touch days to which employees will be entitled. What processes will be in place to update employees with developments at work and to ease their return to work?
• Do you think you are likely to see an increase in flexible working requests from fathers, and is your business prepared for that?

Employers should review carefully the detail of the new rules and adapt their time off work policies accordingly.

“Fit notes”

A new system of “fit notes” comes into use from 6 April 2010, replacing the old form of medical certificate issued by GPs. The purpose of the new fit notes is to focus attention on how an employee can be assisted in his or her return to work by encouraging communication between the patient and the GP, as well as between the employer and employee. The GP is required to complete a form indicating whether they consider a phased return to work, altered hours, amended duties and/or workplace adaptations would enable the employee to return to work. The responsibility, however, will be on the employer to determine whether an employee is fit to return to work in light of the GP’s advice. The new fit note regime will not remove the desirability of obtaining special medical reports, particularly where the employer suspects that the employee’s condition may amount to a disability.

For further information click on the link to the HSE website.

Employers are advised to revise their sickness policies to provide for return to work interviews following the issue of a fit note. The return to work interview will be for the purpose of discussing with the employee any additional measures that may be needed to facilitate their return to work, taking account of their doctor’s advice.

Regulators to be informed of whistleblowing claims

Where a claimant makes a whistleblowing allegation in his or her Employment Tribunal Claim Form (ET1), the Tribunal has, from 6 April 2010, the power to pass on the ET1 to the appropriate regulators provided the claimant consents (by ticking the relevant consent box on the form). The regulator will then be able to investigate the malpractice which has been referred to in the claim form. New ET1s containing the new tick box should be available as from 6 April 2010. The explanatory memorandum on the relevant new regulations explains that the new procedure will enable the whistleblowing allegation to be assessed by Tribunal administrative staff and, where appropriate, acted upon “without involving the release of unsubstantiated allegations into the public domain”. 

Employers should be aware that claimants may be tempted to tick the box indicating their consent to passing on relevant information to the appropriate regulator as a bargaining tool in negotiations in order to force a settlement of their claim. Another point to note is that where the claim is settled or withdrawn, there appears to be no mechanism for the regulator to be informed so presumably the regulator’s investigation may continue independently of the claim.

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010

Employment Tribunal “Fast Track” Scheme introduced

A fast track scheme to help successful claimants recover compensation from their employer is introduced from 6 April 2010. If an employer fails to pay any Tribunal award, employees will have access to an extended service from the High Court Enforcement Officers. There will be a £50 court fee payable by the employee which will be added to the amount owed to them by their employer. 

For information see Ministry of Justice press release.

Additional Paternity Leave and Pay

Regulations introducing Additional Paternity Leave (APL) and pay are expected to come into force on 6 April 2010. For the moment they are still in draft form.  Once in force, the new regime will entitle eligible employees to take up to 26 weeks’ APL if the mother (or adopter) returns to work before using his/her full entitlement to 12 months’ statutory maternity/adoption leave. Eligible employees will usually be fathers but in the case of same sex couples, for example, it could include the partner of the mother or adopter who has not taken adoption leave. The father will need to have been continuously employed for 26 weeks or more by the end of the fifteenth week before the child’s expected week of birth (or being notified of having been matched for adoption). The earliest that the father (or adopter) will be entitled to take APL is twenty weeks after the child is born (or placed for adoption) and there is no further right to take leave after twelve months after the child’s birth (or placement). APL may be paid if taken during the mother or partner’s statutory paid maternity leave or paid adoption leave period;   leave taken after that period will be unpaid. Employees taking APL will qualify for Statutory Paternity Pay if they have average weekly earnings equal to or greater than the current lower earnings limit for National Insurance contribution purposes. Statutory Paternity Pay will be paid at the same rate as the standard rate of Statutory Maternity Pay. These new rights apply in respect of parents of babies born or expected to be born on or after 3 April 2011 or who have been notified of being matched for adoption on or after 3 April 2011.

For more information click on the BIS link.

Employers are advised to review carefully the new rules relating to Statutory Paternity Pay and Leave and to introduce new policies dealing with any employee who is expecting a baby on or after 3 April 2011.

Maternity, Paternity and Adoption Pay increased; SSP to remain the same

As from 4 April 2010 the standard rates of Statutory Maternity, Paternity and Adoption Pay will increase for £123.06 to £124.88. Statutory Sick Pay will remain unchanged at the current rate of £79.15 per week.

New anti-slavery laws

A new law protecting vulnerable workers from slavery and forced labour comes into force on 6 April 2010. The new criminal offence, which will help protect migrant workers from abuse by unscrupulous employers is made under section 71 of the Coroners and Justice Act 2009 and carries a maximum penalty of 14 years in prison. The offence will apply to anyone who holds a person in contravention of the Act, not just employers. We thought slavery had already been abolished but it would appear that the current law only covered trade in slaves and trafficking people for labour exploitation. However, the new law applies even if there is no trafficking. The Government has said that factors that may point to forced or compulsory labour include withholding the worker's documents, such as a passport; the worker being forced to live or remain in a particular area, perhaps in poor accommodation; and the employer not paying agreed wages.