Additional paternity leave and pay: frequently asked questions
Maria Hoeritzauer of Osborne Clarke continues a series of articles on additional paternity leave and pay with some frequently asked questions that look, in particular, at the eligibility requirements for additional paternity leave and additional statutory paternity pay.
When does the right to take additional paternity leave and pay come into effect?
On 6 April 2010, Regulations introducing a new right to additional paternity leave and pay came into force (the Additional Paternity Leave Regulations 2010 (SI 2010/1055) and the Additional Statutory Paternity Pay (General) Regulations 2010 (SI 2010/1056)). However, the Regulations apply only to eligible employees who are fathers, or partners of mothers, of babies due on or after 3 April 2011, or, in the case of adoptions, partners of adopters where the adopter is notified of the match for adoption on or after that date.
Will fathers of babies born before 3 April 2011 qualify for additional paternity leave and pay?
Fathers and partners of mothers of babies born before 3 April 2011 will qualify for additional paternity leave and pay where the baby was born early and the baby was not expected to be born until on or after 3 April 2011 (and they satisfy the eligibility criteria and notification rules).
What are the eligibility requirements for additional paternity leave?
Additional paternity leave will be available to men and women. To be eligible to take additional paternity leave, a father or partner will need to be taking the leave to care for the child and/or support the child's mother or main adopter in caring for the child and have, or expect to have, responsibility for the child's upbringing (other than the responsibility of the mother or main adopter). He or she must also meet relationship eligibility requirements (see Additional paternity leave and pay: overview in this series for more details) and have sufficient service with the employer.
What is the length of service requirement for additional paternity leave?
To qualify for additional paternity leave the father or partner will need to have been continuously employed by his or her employer for at least 26 weeks ending with the 15th week before the expected week of the child's birth, or ending with the week in which he or she was notified of the match for adoption, and have remained in employment with the same employer until the week before the first week of additional paternity leave.
Do fathers need to give notice to take additional paternity leave?
Employees who wish to take additional paternity leave will need to give their employer at least eight weeks' notice. Employees will be required to provide a leave notice, an employee declaration and a mother or main adopter's declaration.
In the leave notice the employee must state:
- his or her name;
- the week in which the mother was expected to give birth, or, in the case of adoptions, the date on which the employee was notified of a match;
- the date that the child was actually born or the date of placement; and
- the dates on which he or she wishes additional paternity leave to start and end.
The employee will also have to give the employer a written declaration stating that he or she:
- wishes to take the additional paternity leave to care for the child;
- is the child's father, or is married to, the civil partner or partner of the child's mother, or is married to, the civil partner or partner of the main adopter and has been matched with the child; and
- has, or expects to have, responsibility for the child's upbringing.
The mother or main adopter will have to provide a declaration to the father or partner's employer stating:
- his or her name, address and national insurance number;
- the date that he or she intends to return to work;
- that the father or partner satisfies the conditions set out in the employee declaration;
- that, in respect of a birth child, the father or partner is, to the mother's knowledge, the only person exercising the entitlement to additional paternity leave; and
- that he or she consents to the father or partner's employer processing the information set out in the declaration.
When will additional paternity leave be able to be taken?
Additional paternity leave will be able to be taken for between two and 26 weeks. It must be taken in a continuous block and in multiples of complete weeks. For a father or partner to be able to take additional paternity leave the mother or main adopter will have to have returned to work. There can be a gap between when the mother or main adopter returns to work and the start of additional paternity leave.
Additional paternity leave will be able to start no earlier than 20 weeks after the baby is born or, in the case of adoptions, 20 weeks after the date when the child is placed for adoption. It will have to be taken within a year of birth or within the first year of adoption.
Will employees on additional paternity leave be entitled to be paid?
Employees who take additional paternity leave may qualify for additional statutory paternity pay. The eligibility and service requirements for additional statutory paternity pay largely reflect those for additional paternity leave. However, to qualify for payment the father or partner must also have received normal weekly earnings that are not below the lower earnings limit for national insurance contributions during the eight-week period ending with the 15th week before the expected week of birth, or ending with the week in which he or she was notified of the match for adoption. The mother or main adopter must have been entitled to receive maternity allowance, statutory maternity pay or statutory adoption pay and must have returned to work with at least two weeks' entitlement to pay remaining. Provided that they otherwise qualify, fathers and partners on additional paternity leave will be entitled to receive additional statutory paternity pay during the period that the mother or main adopter would have received payment had he or she not returned to work.
Additional statutory paternity pay will be payable at the standard rate for ordinary statutory paternity pay (currently £124.88) or 90% of the employee's average earnings if this is less than the standard rate.
Will additional paternity leave and pay apply in relation to adoptions from overseas?
Partners of adopters of children from overseas may qualify for
additional paternity leave where the child enters
As well as meeting the usual relationship eligibility and notification requirements, to be entitled to take additional paternity leave, the partner of the adopter must, before the child enters Great Britain, have been continuously employed for at least 26 weeks either:
- ending with the week official notification of the adoption was sent to the child's adopter; or
- commencing with the week in which his or her employment began.
The paternity leave notice must specify the date on which the main
adopter received official notification of the adoption and the date on which the
child entered
To be entitled to additional statutory paternity pay, the main
adopter's partner must have been continuously employed for at least 26 weeks by
the time the child enters
How will additional paternity leave be affected by the death of the mother or main adopter?
If the child's mother dies within the first year of the birth, or the main adopter dies within one year of the child being placed for adoption, the father or partner will be able to cancel or vary the start and end dates of additional paternity leave. In these circumstances, fathers or partners will be able to take between two weeks and 12 months' leave, ending with the child's first birthday or the first anniversary of the placement for adoption.
Next week's article will be more frequently asked questions on additional paternity leave and pay and will be published on 26 April.
Maria Hoeritzauer (maria.hoeritzauer@osborneclarke.com) is a solicitor with Osborne Clarke.
Further information on Osborne Clarke can be accessed at www.osborneclarke.com.
