Following the birth of a child or an adoption placement, fathers, spouses and partners/civil partners who are employees have a right to paternity leave and pay, to care for the child or support the mother.
Updated for 2011 with details of the new entitlement to Additional Paternity Leave and Pay.
Fathers and partners/civil partners who are
workers will not quality for Paternity Leave but may qualify for Paternity Pay (see below). Freelancers, unless they are classed as Workers, are not eligible for either paternity leave or pay.
N.B. A child’s father will not be entitled to Paternity Leave or Pay if he is separated, divorced or living apart from the child’s mother and plays little or no part in the child’s upbringing.
From 3rd April 2011 there will an entitlement to 2 weeks Ordinary Paternity Leave and Pay (as before) and a new entitlement to Additional Paternity Leave and Pay – see details below.
Eligibility for Paternity Leave:
Employees must satisfy the following conditions in order to qualify for paternity leave. They must:
- have or expect to have responsibility for the child’s upbringing
- be the biological or adopted father of the child, or the mother’s (who is pregnant or adopting) husband or partner or civil partner
- have worked continuously for their employer for 26 weeks (ending with the 15th week before the baby is due, or at the week of notification of an adoption match), and have a contract of employment with their employer
- there are no age restrictions.
If you are not eligible, you can always ask your Employer if you can take some time off, paid or unpaid, for this purpose.
Length of Paternity Leave:
- You can take up to two consecutive weeks’ paternity leave (not odd days).
- You can choose to start your leave: on the day the baby is born or matched for adoption; or a chosen number of days or weeks after the birth/adoption; or when the baby is expected to be born/adopted.
- Leave can start on any day of the week after the child’s birth/adoption but must be finished within 56 days (8 weeks) of the baby being born/adopted.
- If your partner has a multiple birth you’re only allowed one period of paternity leave.
The previous Labour Government introduced Additional Paternity Pay and Leave, to be effective for children who are born or adopted with an expected week of birth (or adoption) of 3rd April 2011 (or after) and where the mother or the adopter of the child has returned to work. See our new details below.
Statutory Paternity Pay:
- During their 2 weeks Ordinary Paternity Leave, most employees are entitled to Statutory Paternity Pay (SPP) from their employers.
- Statutory Paternity Pay is paid by employers for up to two consecutive weeks. The rate is £128.73 per week from 6th April 2011 (or 90% of average weekly earnings if this is less than £128.73), rising to £135.45 from 1st April 2012.
- If you earn less than the Lower Earnings Limit (LEL) for National Insurance contributions (currently £97 per week, rising to £102 from 11th April 2011) you are not eligible for SPP but have the right to unpaid paternity leave if you meet the other conditions.
- ‘Workers’ may be eligible for SPP (not leave) if you meet the other qualifying conditions above (see under ‘Eligibility’).
Notice of intention to take Paternity Leave:
- You must inform your employers of your intention to take paternity leave by the end of the fifteenth week before the baby is expected or no later than 7 days after the notification of an adoption match, unless this is not reasonably practicable.
- You must tell your employers: the week the baby is due (or due to be adopted); whether you wish to take one or two weeks’ leave (you cannot take less than a week) and when you want your leave to start.
- You must give your employer 28 days notice of the date on which you want SPP to start.
- You can change your mind about the date on which you want your leave to start providing you tell your employer at least 28 days in advance (unless this is not reasonably practicable).
- Your Employer may not postpone or defer your paternity leave if you have given the proper notice.
- If you do not give the proper notice you are not entitled to take paternity leave.
Return to work after Paternity Leave:
You are entitled to return to the same job following paternity leave.
Additional Paternity Leave:
You are entitled to Additional Paternity Leave if you:
- are the father or spouse or partner of a mother expecting a baby on or after 3rd April 2011 (or, in an adoption situation, where the notification of an adoption match is on or after 3rd April 2011)
- and have 26 weeks continuous employment with your Employer (at the 15th week before the expected week of birth or the week of an adoption match)
- and you remain in continous employment with your Employer until the 1st week of the additional paternity leave
- and you have, or expect to have, responsibility (with the mother) for the child’s upbringing
- and, if you are adopting, you must be jointly adopting with the mother as part of a couple.
How long is Additional Paternity Leave for?
- You can take between 2 and up to 26 weeks Additional Paternity Leave in the period that begins 20 weeks after the child is born/adopted and which ends one year after the birth/adoption as long as the child’s mother’s period of maternity or adoption leave has ended early.
- So, in effect, the Employee taking the Additional Paternity Leave ‘takes over’ the mother’s remaining period of maternity or adoption leave. When the mother returns to work she must have at least 2 weeks maternity or adoption pay remaining for the father/spouse/partner to qualify for APL.
- Additional Paternity Leave must be taken as one continuous period in multiples of complete weeks.
- You must give your Employer at least 8 weeks notice of the start and finish dates of your Additional Paternity Leave. It is likely you will be required to sign a declaration confirming your eligibility and your relationship with the mother and child. Your Employer must write to you within 28 days of receiving your information confirming the start and end dates. You are able to change your proposed dates, or cancel your APL, if you give your Employer 6 weeks written notice where this is reasonably practical.
- You are entitled to your normal terms and conditions, expect pay/salary, while on APL and you are entitled to return to the same job at the end of your APL if that job is still available. If a redundancy situation arises while you are away on APL, you must be offered a suitable alternative vacancy if one is available (see our Guide to Redundancy and SRP). You also have the right not to be subject to any detriment and the right not to be dismissed because you have taken, or want to take, a period of APL.
Additional Paternity Pay:
- Where the child’s mother/main adoptor has ended their period of maternity or adoption leave before they have used up their maximum entitlement of 39 weeks Statutory Maternity Pay/Statutory Maternity Allowance/Statutory Adoption Pay, the Employee taking Additional Paternity Leave is entitled to take over their un-used entitlement, so will be paid for the remainder of the 39 week period (as long as they have earnings over the Lower Earnings Limit – see above) at the normal rate of Paternity Pay/Statutory Maternity Pay – see above. When the mother returns to work she must have at least 2 weeks maternity or adoption pay remaining for the father/spouse/partner to qualify for APL.
- Employers, may of course, provide more generous, contractual Paternity Pay.
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Workline is supported by Employment Lawyers Goodman Derrick LLP. Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
