For all HR practicioners, dealing with maternity well is essential for talent retention, engagement and attraction as well as complicance with employment law. However with the new paternity rights as well it’s clear you need to make sure you work with your employees to help them fulfill their parental responsibilities as well as their careers. This guide should help you be prepared for whenever your employees need your support.

In April 2011, after several years of discussion, fathers are likely to be able to take advantage of additional paternity leave, enabling mothers to effectively transfer part of their maternity leave to their partner. The new legislation is designed to give mothers and fathers more choice when it comes to childcare responsibilities, give fathers greater opportunities to be involved in raising their child, as well as giving mothers more options with regards to starting back at work.

While the government has aimed to minimise the administrative burden for employers in introducing the scheme, it is still crucial that HR professionals and managers are aware of the changes and how to implement them come the 1 April. The following guide looks at current paternity and maternity legislation and how the proposed introduction of additional paternity leave will work in practice.

The current situation

The current law on paternity leave, which has been in place for just over six years, will remain the same. This is the statutory entitlement for employees to take up to two weeks’ paternity leave as long as they have responsibility for the child’s upbringing, are the biological father and/or the mother’s husband or partner. They must also have worked continuously for the same employer for 26 weeks ending with the 15th week before the baby is due (the qualifying week) or matched for adoption, and still be in employment when the leave is taken.

Statutory Paternity Pay (SPP) is paid at 90% of the employee’s average weekly earnings or £124.88 (since 4 April 2010), whichever is lower. The employee must also have average weekly earnings at or above the lower earnings limit – currently £97.

The leave is designed to give the father time to support the mother and/or care for the baby and it can be taken as one or two consecutive weeks’ leave, either starting on the actual date of the baby’s birth or on a specified date after the birth. However, the leave must finish within 56 days of the actual birth date or, if the child is born early, between the birth and 56 days from the first day of the expected week of childbirth.

What will change in April?

The new legislation will extend fathers’ rights, giving them a second period of leave (Additional Paternity Leave or APL for short) but only if the mother chooses to return to work. So the father will still be able to take the statutory two weeks off but he will then be allowed to take another period of leave to take over childcare responsibilities from the mother, from 20 weeks after the baby is born.

According to the regulations, APL can be for a minimum of two and a maximum of 26 weeks and a further benefit for the parents is that any APL which falls within the mother’s maternity pay period will qualify for the remainder of the mother’s statutory maternity pay. This is paid to the father as additional statutory paternity pay.

It is also important to note that, as with maternity leave, contractual benefits, apart from remuneration, will continue during the APL and fathers will be able to take Keeping in Touch days in the same way as other employees do during maternity and adoption leave.

How does it work in practice?

To take APL, both parents will have to provide signed declarations to the father’s employer and a standard form will be available covering information such as the expected week of childbirth and the mother’s national insurance number. This information will be used by the employer to check the employee’s eligibility and to calculate any payment due. It will also be used by HMRC to check that the claim was paid correctly and that the mother was indeed entitled to maternity or adoption pay.

As the legislation stands, employers will therefore have to manage two periods of absence for fathers who take the current statutory two weeks’ paternity leave and then APL later on. This will have the effect of a “stop/start” system with the initial period of two weeks’ paternity leave usually taken around the birth of the child, then a return to work followed by APL taken a few months later. Given the possible length of the second period of leave, employers may want to consider taking on temporary ‘paternity cover’, as is often the case when a female employee takes maternity leave.

A recap of maternity leave regulations

For a variety of reasons, including encouraging the greater involvement of women in the workplace, pregnant women or women on maternity leave have special rights under the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999, including:

• Leave: Mothers are entitled to 52 weeks’ maternity leave in total, comprising 26 weeks’ Ordinary Maternity Leave (OML) and 26 weeks’ Additional Maternity Leave (AML), regardless of their length of service. The earliest that an employee can start her maternity leave is 11 weeks before the baby is expected to be born (unless the baby is born earlier or stillborn after 24 weeks of pregnancy). Notice of maternity leave must be given by the end of the 15th / beginning of the 14th week prior to the expected week of childbirth (EWC) unless this is not possible. 
• Pay: Statutory Maternity Pay (SMP) lasts for 39 weeks, with the first six weeks paid at 90% of the average weekly wages, the following 33 weeks at a flat rate of £124.88 and the final 13 weeks taken as an unpaid period of leave.
• Discrimination: Rules on dismissal and the protection from less favourable treatment for pregnant employees or those on maternity leave are contained within the Employment Rights Act 1996 and the Equality Act 2010.
• Keeping in Touch (KIT) days: These days can form an important part of maternity leave procedure as they give the mother the possibility of working for her employer for up to 10 days without bringing the leave to an end.

Although this is a complicated area, the main things for employers to keep in mind are that new legislation is adding to paternity leave rights, but the information stated in the 2002 Employment Act remains unchanged.

• Guide by Carol Smith, Senior Consultant at Croner, a Wolters Kluwer business (www.croner.co.uk) and the UK’s leading provider of workplace information, software and services. For further information visit www.croner.co.uk.