Staff Matters

A final consultation paper on draft Additional Paternity Leave Regulations has been published by the Department of Business, Innovation and Skills, and the Government hopes to pass them by April. The regulations will have effect only for the parents of children born (or placed for adoption) on or after April 3, 2011.

Current paternity law

The current paternity leave law, which has been in place for more than six years, will remain the same. This is the statutory entitlement for employees to take up to two weeks’ paternity leave. The employee must expect to have responsibility for the child’s upbringing, be the biological father and/or the mother’s husband or partner. The employee 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), and still be in employment when the leave is taken.

Statutory Paternity Pay is paid at 90 per cent of average weekly earnings or £123.06 (since April 6, 2009), whichever is the lower. The employee must have average weekly earnings at or above the lower earnings limit – £95 for 2009/10.

The time off is to support the mother and/or care for the baby. An employee can take 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. 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.

New paternity proposals

The new legislation will offer a second period of paternity leave for a father to look after the child, if the mother chooses to return to work. The father will still be able to take the statutory two weeks off, either at the time of the birth or shortly afterwards, and then return to work. The new proposals will then allow him to take another period of paternity leave (called additional paternity leave, or APL for short) from 20 weeks after the baby is born, if the mother returns to work at that point.

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

Contractual benefits, apart from remuneration, will continue during the APL. To take APL, both parents will have to provide signed declarations to the father’s employer. A standard form will be available covering information such as the expected week of childbirth, the date when the employee wishes to start APL and details about the mother, including her National Insurance number, the date she intends to return to work and details of her statutory maternity or adoption pay.

The information will be used by the employer to check the employee’s eligibility and calculate any payment due. The information will also be used by HM Revenue and Customs to check the claim was paid correctly and the mother was entitled to maternity or adoption pay.

It is hard to anticipate how many fathers will take the opportunity of APL, especially as the leave is dependent on the mother’s return to work before the end of her maternity leave. It could be that the couples most likely to take advantage of APL are those where the mother earns either the same or more than the father, making it financially beneficial for the mother to return to work from the 20th week after the birth.

As the proposed legislation stands, employers will have to manage two periods of absence for fathers who take the current statutory two weeks’ paternity leave and 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 and then APL taken a few months later. On a final note, these regulations are still in draft, so watch this space for an update.