Paternity leave

Paternity leave is one of the basic family friendly rights that often crops up in the workplace. The rules on paternity leave raise some tricky issues in practice that employers need to understand.

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What are the basics of paternity leave?

Paternity leave is the right for a father, partner of a pregnant woman, surrogate parent or someone who has been matched with a child by an adoption agency, with six month's service as an employee, to take up to two weeks' leave in one block. The leave must be taken within 56 days of the birth of a child or within 56 days of the expected date of birth if the child is born early (ordinary paternity leave or OPL) and, in some cases, if the child is born before 5 April 2015 (or in the case of adoption if the child is placed before 5 April 2015),to take up to a further 26 weeks' leave (additional paternity leave or APL).

Entitlement to APL depends on the child's mother or adopter having returned to work with some maternity or adoption leave entitlement unused. In effect, the mother's unused maternity leave (or adopter's unused adoption leave) can be taken by the father as APL.

After 4 April 2015 an employee will no longer be entitled to APL, but may have the right to take shared parental leave.

Expectant fathers, or partners of expectant mothers (and surrogate parents from 6 April 2015) are also entitled to unpaid time off work to attend up to two antenatal appointments (up to a maximum of six and a half hours each) regardless of the length of time they have worked for an employer.

Employees who earn more than a set (low) amount which changes periodically are entitled to statutory paternity pay (SPP) at a fixed statutory rate during OPL (£140.98 a week or 90% of the average weekly earnings, whichever is lower). Whether they receive SPP during APL depends on when exactly the mother or adopter returned to work (ie whether they had entitlement to statutory maternity or adoption pay remaining).

During paternity leave, the employment contract continues except for pay, and all benefits must continue as normal.

Employees must not be dismissed or subjected to detriment for taking or requesting paternity leave. Consider introducing a paternity policy which will help managers and staff to understand the paternity leave rights and obligations, and ensure that the policy includes references to your Data protection policy and Employee privacy notice - a statement describing how you collect, use, retain and disclose personal information. For further information, read Data protection and employees.

What relationship must the employee have with the child?

Anyone with parental responsibility can take paternity leave. This means they must be the child’s biological parent (whether or not living with the child) and expect to have some responsibility for its upbringing. Alternatively, they should be the child’s adoptive or surrogate parent or the spouse, partner or civil partner of the child’s mother or adopter or surrogate parent and expect to have main (shared) responsibility for its upbringing.

Tricky paternity leave issues

In general, OPL gives rise to few complex legal issues. The tricky areas tend to arise in connection with APL, which is legally similar to maternity leave.

Holiday accrues during paternity leave. It is risky to prevent employees carrying forward accrued holiday if the holiday year-end falls during their paternity leave, as the law is unclear on this matter.

Pensions and APL is also a very tricky area. Pension contributions should be maintained during paid paternity leave. It is not clear whether pension contributions must be made during OPL but need not be made during unpaid APL.

Take care to adjust performance and bonus targets, where appropriate, to avoid unfairly penalising employees on paternity leave. Pro-rating is normally acceptable. Do not reduce bonuses that are not dependent on work performed because of paternity leave (eg loyalty bonuses and some Christmas bonuses).

Where employees take APL, it may not be practicable to have them return to the same job. In this case, they must be offered suitable, alternative employment. Employees who take only OPL must always return to the same job.

Where a redundancy situation arises affecting a man on APL, Ask a lawyer about offering suitable alternative employment, as this area can be difficult.

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