Regulations concerning the new right to additional paternity leave (APL) came into force on 6th April 2010. Currently those eligible for ordinary statutory paternity leave are entitled to one whole week or two consecutive weeks’ paternity leave on statutory paternity pay, which is currently £124.88, to be taken within eight weeks of the expected week of childbirth (EWC). However, eligible fathers whose children are due on or after 3 April 2011 will have the right to take up to 6 months’ additional paternity leave (APL). The right will also apply to adoptions where parents are notified of a match on or after 3 April 2011 and husbands, partners or civil partners who are not the child’s father but expect to have the main responsibility (apart from the mother) for the child’s upbringing.
Continue reading our for a summary of the new provisions regarding Additional Paternity Leave.
- 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.
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).
- 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?