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Paternity leave: Employees’ rights

Paternity leave

Sinead McCracken explains the most important points to know about employees' paternity leave rights.

Paid statutory paternity leave of one or two weeks was first introduced in 2003.

It applies to both fathers and spouses/partners (including those of the same sex as the mother), provided they satisfy certain eligibility requirements.

This blog provides an overview of statutory paternity leave and statutory paternity pay in respect of the birth of a child.

Employers should also remember, however, that they can also apply where a child is adopted.

Who is eligible for paternity leave?

If someone wants to take statutory paternity leave, then firstly their employer needs to be clear as to whether that person is eligible.

Statutory paternity leave is only available to employees (and not to other types of worker or to the self-employed) and employees will only be eligible if:

  • they have or expect to have responsibility for the child’s upbringing; and
  • they are the biological father of the child or they are the mother’s spouse or partner (including same-sex relationships).

The employee must also be taking the time off to look after the baby or to support the child’s mother.

Also in order to qualify, the employee must have been continuously employed for at least twenty-six weeks by their employer by the end of the 15th week before the week in which the child is expected to be born.

What notification does an employee need to give?

Employees should notify their employer at least fifteen weeks before the due date of the child of:

  • the date the child is due to be born;
  • when they wish their statutory paternity leave to start; and
  • the amount of statutory paternity leave they wish to take.  

When does statutory paternity leave start and how long does it last?

The current statutory paterntiy leave allowance is a maximum of two weeks. Employees can choose to take either a single week or two consecutive weeks and so this is something which employers should be mindful of in terms of planning for staffing needs in their business. If an employee has twins, the amount of paternity leave time cannot be doubled and remains at the two week entitlement.

Statutory paternity leave must be taken within 56 days from the actual date of birth of the child. It can begin on the day the baby is born, a certain number of days after the baby is born or on a specific date which must not be earlier than the baby’s due date. Crucially, paternity leave cannot begin before the baby is born, unlike maternity leave.

What are employers expected to pay employees who are eligible for statutory paternity pay?

The current statutory entitlement to paternity pay is £145.18 per week or 90% of the employee’s average weekly earnings, whichever is the lower.

There is a special leave calculator for maternity, adoption and paternity pay for employers to use on the gov.uk website here.

Can employees be entitled to any additional pay?

Employers may offer more than the statutory paternity entitlement as part of their employment package. Employees can also get additional pay and leave, if they qualify for shared parental leave.

It is prudent for employers to make their paternity leave and pay policies clear to their staff.

Less favourable treatment

Employees must not be treated less favourably for taking or proposing to take statutory paternity leave.

Except in very limited circumstances, they have a right to return to their job following a period of statutory paternity leave and to do so on the same terms and conditions as before. Other than in respect of pay, their employment continues as normal while they are off (and so they continue to be entitled to any contractual benefits, such as use of a company car) and annual leave also continues to accrue.

What about antenatal appointments?

The father of an unborn child and the spouse or partner of a pregnant woman is entitled to unpaid time off (during working hours) to attend two antenatal appointments. Employers can choose, at their discretion, whether they allow their employees to take this time off as paid or unpaid.

Stillbirths and paternity leave

If a baby is stillborn after the twenty-fourth week of pregnancy or if the baby is born alive but sadly then passes away, an employee will be entitled to full paternity rights, providing they would have been eligible for those rights if the child had lived.

Shared parental leave

Shared parental leave (SPL) was introduced in the UK in April 2015 and is an additional right to the other type of statutory family leave arrangements.

SPL allows both the child’s mother and the child’s father (and the spouse or partner of the mother) to share up to 50 weeks of leave and up to 37 weeks of pay between them. Employees will need to do this within the first year after the birth of the child (or a child being placed with their family, if they are adopting).

SPL can be taken in blocks separated by periods of work or it can be taken all in one go. Despite this, the latest statistics from the Department of Business show that only 2% of eligible fathers are choosing to use shared parental leave.

More information about SPL can be found at https://www.gov.uk/shared-parental-leave-and-pay.

About the Author

Sinead McCracken profile photo

Sinead McCracken

Sinead McCracken is a trainee solicitor at Burnetts.

Published: Friday 14th December 2018
Categorised: Commercial Client, Private Client, Employment, HR, Legal Services in Newcastle, Penrith, West Cumbria

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