The Government has confirmed that the rules concerning “shared” maternity leave will come into force, supplementing a father’s existing right to two weeks paternity leave. The two separate rights are “Paternity Leave” and “Additional Paternity Leave”.
Paternity Leave: the entitlement
In order to qualify for up to two weeks’ paternity leave, the following must apply:
1. The right is only available to employees.
2. There must be at least 26 weeks continuous service before the 14th week expected week of childbirth.
3. The person claiming must be either:
a. The father of the child; or
b. Married to, in partnership with, or in civil partnership with, the mother.
4. The person claiming expects to have responsibility for the upbringing of the child.
Therefore, the right to paternity leave extends to men who are not the father, a woman in a civil partnership, or fathers who are not married to the mother. For the ease of reference, this article refers to “father”.
Employee notification
The father must give notice to his employer that he intends to exercise his right to paternity leave. No later than 15 weeks before the expected week of childbirth, the father must notify his employer of:
1. The expected week of childbirth;
2. The length of paternity leave intended (either one week or two consecutive weeks); and
3. The date on which the paternity leave should begin.
The expected week of childbirth is given by the GP or midwife on Form MATB1.
The father may take paternity leave at any time between the date the baby is due (or when the baby is born if earlier) and 56 days after the baby is due (or born, if earlier).
Notice does not have to be given in writing; however the employer can request it to be made in writing. The employer can require the father to confirm in writing that:
1. he is the father of the child, or married to, in partnership with, or in civil partnership with the child’s mother; and
2. he expects to have responsibility for the upbringing of the child.
Additional paternity leave
The purpose of additional paternity leave is to allow couples to “share” care of the child in the first year. Put simply, a father is allowed to take up to 6 months’ additional paternity leave if the mother returns to work. The provisions are relatively complex, although what follows is intended to simplify the rules.
Additional paternity leave: the entitlement
In order to claim Additional Paternity Leave the expected week of childbirth must be on or after 3 April 2011. In addition:
1. The father must be an employee, and have at least 26 weeks continuous service before the 14th week expected week of childbirth.
2. The father must still be employed by the same employer until the week before the additional paternity leave starts.
3. The person claiming must be either:
a. The father of the child; or
b. Married to, in partnership with, or in civil partnership with, the mother.
4. The person claiming expects to have responsibility for the upbringing of the child.
5. The mother must have been entitled to maternity leave, statutory maternity pay or maternity allowance.
6. The mother must have returned to work, or her statutory maternity pay or maternity allowance must have ended.
In summary, the father must meet the requirements for ordinary paternity leave. In addition the mother must have been entitled to statutory maternity leave, statutory maternity pay or maternity allowance, and the mother must have returned to work.
Duration of additional paternity leave
A father can take between two and 26 weeks Additional Paternity Leave. It can be taken at any time between 20 weeks and 12 months after the birth.
Additional paternity leave: employee notification
At least eight weeks before the start of additional paternity leave, a father must provide his employer with the following information in writing:
1. The expected week of childbirth, the actual date of birth, and the dates chosen for additional paternity leave. This is known as the “leave notice”.
2. An “employee declaration” confirming he is:
a. The child’s father, or married to, in partnership with, or in civil partnership with the child’s mother; and
b. he expects to have responsibility for the upbringing of the child.
3. A “mother declaration”, provided by the mother confirming:
a. The mother’s name, address and national insurance number;
b. The date the mother intends to return to work (or the date when the statutory maternity pay or maternity allowance will end);
c. Confirmation that the father satisfies the conditions in 2 above, and that the father is the only person claiming additional paternity leave for the child; and
d. Consent to the processing of information contained in her declaration.
Once the employer receives this information, within 28 days they can request a copy of the child’s birth certificate and the name and address of the mother’s employer. In addition, within 28 days of receiving the leave notice the employer must confirm in writing to the employee the dates for additional paternity leave.
It remains to be seen what the level of take up will be for additional paternity leave; the government estimates that between 4% and 8% of eligible fathers will make some use of the rights.
What is clear is that there are a number of potential difficulties facing employers. For example, how do they check whether the father has responsibility for the upbringing of the child, and how do they know whether the mother has returned to work? There are also financial considerations where employers offer enhanced maternity pay schemes. For example, if the employer offers 12 months maternity leave at full pay, is a father taking additional paternity leave entitled to the same?
The government has also announced it plans to consult further about a “proper” system of shared parental leave to be introduced in 2015. So, we will have a little time to get used to the additional paternity leave rules, before the government move the goal-posts again.
This information is believed to be correct as at 19 January 2011. It is not a substitute for legal advice and no liability attaches to its use. Specific and personal legal advice should be taken on any individual matter.
