Additional paternity leave and pay: more frequently asked questions
Frances Vickery of Osborne Clarke concludes a series of articles on additional paternity leave and pay with some more frequently asked questions that look, among other things, at the employment protection rights of employees who are on additional paternity leave. Employees on additional paternity leave will benefit from specific rights in relation to redundancy, unfair dismissal and detrimental treatment.
Can female employees take additional paternity leave?
The right to take additional paternity leave will apply to female as well as male employees. Under reg.4 of the Additional Paternity Leave Regulations 2010 (SI 2010/1055), in relation to births, employees are entitled to be absent from work for the purpose of caring for a child if, among other conditions, they are:
- the child's father; or
- married to, or the partner or civil partner of the child's mother, but are not the child's father.
In relation to adoptions, under reg.14 of the Regulations, employees must be:
- married to, or the partner or civil partner of the main adopter; and
- have been matched with the child for adoption.
"Partner" is defined in the Regulations as a person, whether of the same or a different sex, who lives with the mother or main adopter and the child in an enduring family relationship. The person cannot be a relative of the mother. "Relative" is defined as a parent, grandparent, sister, brother, aunt or uncle of the mother or main adopter.
Therefore, civil partners and couples in same-sex relationships who live together will, subject to meeting the other qualifying conditions set out in the Regulations, be able to benefit from additional paternity leave, as will wives and female partners of male main adopters.
Will employees on additional paternity leave have any special rights if they are made redundant?
If an employee is made redundant during additional paternity leave, he or she will be entitled to be offered suitable alternative employment where it is available, which should take effect when the original contract of employment comes to an end. Employers must also offer any available suitable employment with associated employers.
The work that the employee will be entitled to be offered under a new contract should be "suitable in relation to" the employee and "appropriate for [the employee] to do in the circumstances" (reg.28 of the Regulations). This means that the employer may have to take into account additional domestic responsibilities that the employee may have, such as meeting childcare needs, when offering alternative work.
The employer will also need to ensure that the place and other terms and conditions of employment are not substantially less favourable than they would have been had the employee continued to be employed under the original contract.
The redundancy rights in relation to additional paternity leave reflect those that apply to women on maternity leave and employees on adoption leave. The practical effect of these provisions is that employees on additional paternity leave (or maternity leave or adoption leave) who are at risk of redundancy are in a better position than their colleagues in relation to being considered for alternative work, because employers must give them priority.
Will employees on additional paternity leave be entitled to keeping-in-touch days?
Yes. The provisions entitling employees on maternity leave and adoption leave to keeping-in-touch days to work for their employer are mirrored in the 2010 Regulations. An employee on additional paternity leave will be able to carry out up to 10 days' work for his or her employer, without bringing the additional paternity leave period to an end (or losing additional statutory paternity pay).
Work is not restricted to the usual duties carried out by the employee and can take other forms, for example training and attending conferences or team meetings.
Employers cannot force employees to take keeping-in-touch days. Nor can employees insist on working them.
If an employee carries out work for a proportion of a working day, this will count as a full keeping-in-touch day. Keeping-in-touch days do not extend the overall duration of additional paternity leave to which the employee is entitled. If an employee works keeping-in-touch days, he or she will be entitled to be paid according to any contractual arrangement, which should be discussed and agreed with the employee. Statutory additional paternity pay will continue to be payable but employers may use contractual payments to offset liability for it.
How much notice will an employee on additional paternity leave need to give, if he or she wishes to return to work earlier than planned?
If an employee wants to return to work earlier than the date originally given as the end of the additional paternity leave period, he or she will have to give the employer at least six weeks' notice of the new return date.
If the employee attempts to come back to work without giving the employer the required six-week notice period, the employer can postpone the date of return for such a period that will ensure that it receives six weeks' notice of the early return to work. If the employee returns to work early even though six weeks' notice is yet to elapse, the employer will have no obligation to pay him or her for work undertaken until the date on which the six-week notice period elapses.
In the event of multiple births, are employees entitled to more additional paternity leave?
No. The length of additional paternity leave is the same (ie two to 26 weeks) regardless of the number of babies born as a result of a single pregnancy. The position is the same for adoptions of more than one child as part of the same adoption arrangement.
What rights will employees who return to work from additional paternity leave have?
Other than in cases of genuine redundancy, employees who return from additional paternity leave will be entitled to return to work in the job in which they were employed before the leave, provided that the leave was an isolated period of leave or it was the last of two or more consecutive periods of statutory leave (not including a period of additional maternity leave or additional adoption leave or a period of parental leave of more than four weeks). Where the additional paternity leave does not satisfy this requirement the employee will be entitled to return to the same job as before he or she went on leave unless it is not reasonably practicable for the employer to permit him or her to return to that job. In this case the right is to return to another job that is both suitable for the employee and appropriate for him or her to do in the circumstances.
Employers must protect employees' seniority on their return to work. Employees will also be entitled to the same pension and similar rights as if they had not been absent. Terms and conditions must also not be less favourable than those that would have applied had they not been absent.
Will employees who take additional paternity leave benefit from protection against detrimental treatment and dismissal?
Yes. Under regs.33 and 34 of the Regulations, employees will be protected against detrimental treatment and dismissal for exercising their right to take additional paternity leave (or where the employer believes that they are likely to take leave). This will include protection against detrimental treatment and dismissal for failing to return to work when due, where the employer has not notified the employee of the date on which the leave will end and the employee reasonably believes the leave period has not ended, or where the employer has given the employee less than 28 days' notice of the day that the leave will end and it was not reasonably practicable for him or her to return on that date. Protection in relation to taking or refusing to take keeping-in-touch days will also apply.
Employees will be able to bring unfair dismissal and detrimental treatment claims in an employment tribunal, which will be able to award compensation. Employees will not need to satisfy a continuous service requirement to bring claims.
Next week's article will be the first in a new series on employment-related issues arising from the football World Cup tournament and will be published on 4 May.
Frances Vickery (frances.vickery@osborneclarke.com) is a solicitor with Osborne Clarke.
Further information on Osborne Clarke can be accessed at www.osborneclarke.com.
