Additional paternity leave and pay: case study

Kath Sadler-Smith of Osborne Clarke continues a series of articles on additional paternity leave and pay with a case study that looks at a situation in which an employee qualifies for the new right to take additional paternity leave and additional statutory paternity pay. 

Frank works in the general office of Smallco Ltd, a stationery distribution company. He has worked for the company for two years. His wife, Mary, manages the sales and marketing department at Glam Fashions Ltd. They are expecting their first baby on 10 April 2011. Mary goes on maternity leave at the end of March and receives statutory maternity pay. A week later, the baby is born and Frank takes two weeks' ordinary paternity leave, during which he receives ordinary statutory paternity pay. Mary earns more than Frank so the couple decide that she will go back to work early and Frank will take additional paternity leave. He puts in a request to Smallco to be able to take additional paternity leave when the baby is three months old. 

Does Smallco have to agree to Frank's request?

Under the Additional Paternity Leave Regulations 2010 (SI 2010/1055), Frank may qualify for additional paternity leave because his baby is due on or after 3 April 2011. For Frank to be able to take additional paternity leave Mary must return to work. He could take between two and 26 weeks' leave to care for the baby but cannot start his leave earlier than 20 weeks after the baby is born. Leave must end by the time of the baby's first birthday. Smallco does not have to agree to Frank's request to take additional paternity leave because he wishes to start it too early, ie when the baby is only three months old rather than 20 weeks old.

Smallco refuses Frank's request to take additional paternity leave when his baby is three months old and advises him that he must wait until the baby is 20 weeks old, before taking leave.

What other criteria must Frank meet to qualify for additional paternity leave?

For Frank to be able to take additional paternity leave he must satisfy the eligibility criteria, which largely reflect those for ordinary paternity leave. He must:

  • be the baby's father or be married to, or the civil partner or partner of the baby's mother;
  • have, or expect to have, responsibility for the baby's upbringing (other than Mary's responsibility);
  • have been continuously employed by Smallco for at least 26 weeks ending with the 15th week before the expected week of childbirth (the EWC);
  • remain employed by Smallco until the week before the first week of additional paternity leave; and
  • be taking the leave to care for the baby.

Frank must also give Smallco at least eight weeks' notice of his intention to take paternity leave.

Frank satisfies the eligibility conditions for additional paternity leave and decides to take his leave as soon as possible, ie when the baby is 20 weeks old. He gives Smallco at least eight weeks' notice that he wants to take 26 weeks' additional paternity leave.

What information must Frank include in his request for additional paternity leave?

At present, there is no prescribed form that employees must use to apply for additional paternity leave. Whatever format his application takes, Frank must give Smallco a leave notice, an employee declaration and a mother's declaration.

In the leave notice Frank must state:

  • his name;
  • Mary's EWC;
  • the date that his baby was actually born; and
  • the dates on which he wishes his additional paternity leave to start and end.

Frank must also provide Smallco with a declaration stating that he:

  • wishes to take the additional paternity leave to care for the baby;
  • is the baby's father, or is married to or the civil partner or partner of the baby's mother; and
  • has, or expects to have, responsibility for the baby's upbringing.

Mary must provide a declaration to Smallco stating:

  • her name, address and national insurance number;
  • the date that she intends to return to work;
  • that Frank satisfies the conditions set out in his employee declaration;
  • that Frank is, to her knowledge, the only person exercising the entitlement to additional paternity leave in respect of the baby; and
  • that she consents to Smallco processing the information set out in her declaration.

Smallco could request a copy of the baby's birth certificate and/or the name and address of Mary's employer within 28 days of receiving Frank's leave notice. Frank would need to supply this information within 28 days of Smallco's request.

Frank complies with the notification requirements for additional paternity leave. As he received ordinary statutory paternity pay during his ordinary paternity leave, he wonders if he will be entitled to any payment during the additional leave too.

Is Frank entitled to be paid during additional paternity leave?

Additional statutory paternity pay is payable during additional paternity leave to qualifying employees. For Frank to be entitled to payment, Mary must be eligible to receive statutory maternity pay or maternity allowance, and have at least two weeks of her entitlement outstanding.

The qualifying rules for additional statutory paternity pay largely replicate those for ordinary statutory paternity pay. Frank must:

  • be the baby's father or be married to, or the civil partner or partner of the baby's mother;
  • have, or expect to have, responsibility for the upbringing of the baby (other than Mary's responsibility);
  • have been continuously employed by Smallco for at least 26 weeks ending with the 15th week before the EWC, and remain continuously employed by it in the week before the first week of the additional statutory paternity pay period;
  • have received normal weekly earnings that were not below the lower earnings limit for national insurance contributions during the eight-week period ending with the 15th week before the EWC; and
  • intend to care for the baby during the leave period.

As Mary qualifies for statutory maternity pay and Frank satisfies the qualifying rules for additional statutory paternity pay, he is entitled to be paid it.

When their baby is 20 weeks old, and Frank starts his additional paternity leave, Mary will have been paid 21 weeks of statutory maternity pay before she returns to work at Glam Fashions. Were she to remain on maternity leave she would be entitled to a further 18 weeks' statutory maternity pay (ie a total of 39 weeks' pay). Therefore, Frank could receive up to 18 weeks' additional statutory paternity pay. If he takes 26 weeks' additional paternity leave, eight weeks of his leave period will be unpaid.

Smallco approves Frank's additional paternity leave and pay. As required, it gives him written confirmation of the start and end dates of additional paternity leave and pay within 28 days of Frank giving it the required information. Frank starts his leave and is due to return to work 26 weeks later. However, as eight weeks of his leave period will be unpaid he and Mary later decide that, to boost their household income, he will return to work earlier than they originally planned.

Does Frank have to give notice of his early return?

If Frank wants to return to work earlier than his original return date he must give Smallco at least six weeks' notice of the date on which he intends to return. If he gives shorter notice, Smallco could postpone Frank's return date so that it receives the six weeks' notice to which it is entitled. If he still returns early, Smallco is not obliged to pay him until the end of what would have been the six-week notice period. Given that the reason Frank wants to return early is to boost the household income, he should ensure that he complies with the notice requirement.

However, if Smallco had not given Frank written notification of his additional paternity leave end date, he could return early without giving the required notice and Smallco would be obliged to pay him from his actual return date.

Therefore Smallco, like any employer faced with an employee seeking to take additional paternity leave, should ensure not only that it obtains the required evidence of entitlement for taking paternity leave but also that it confirms the relevant dates and entitlements to the employee, so that the position is clear from the outset.

Next week's article will be FAQs on additional paternity leave and pay and will be published on 20 April.

Kath Sadler-Smith (kath.sadler-smith@osborneclarke.com) is a senior associate with Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.