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Martin Brewer

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Ask the expert: Paternity leave starts…now

If a worker is a birthing partner at a prolonged labour, where do the employers stand? Martin Brewer and Esther Smith advise on when and how paternity leave comes into effect.

The question:

When a woman goes into labour but does not have the baby until the following day can an organisation insist that the birthing partner – in this case the husband – take annual leave for the day of labour, as paternity leave does not start until the day of the birth?

Legal advice:

Martin Brewer, partner, Mills & Reeve

There are, in fact, two separate questions here. When does paternity leave start and what is the status of a person purportedly on paternity leave before that period. As to the first question, by virtue of Regulation 5 of the Paternity and Adoption Leave Regulations 2002 paternity leave "may only be taken during the period which begins with the date on which the child is born and ends" 56 days later. It is not possible to take paternity leave before the child is born. The second question is a matter of contract. If a man has gone on leave but it isn’t paternity leave (as in your case, he could not be) what is the status of that leave? It is a matter of looking at your contract with him to see whether you can enforce holiday. The alternatives are unpaid leave or even absence without leave, although I imagine you agreed that the employee could take the time off, so retrospectively telling him he was on unauthorised leave seems a bit on the harsh side. I suggest he either agrees to holiday or it is unpaid leave if you don’t just want to give him an extra day off.

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar

Not an uncommon problem! Technically, statutory paternity leave can only commence on the day of birth, so cannot commence the day before even if the woman has been in labour since then (or earlier!). If the employee has taken the day off to be with the mother while she was in labour, then you can legitimately ask them to use a day’s holiday to cover this day, if they want to receive pay for it, or alternatively (if they do not want to use holiday or do not have any to take) you could regard it as unpaid but authorised leave.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.


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