Date 8 February 2011
From April 2011 paternity leave rights will change to allow employees the right to take up to six months’ paternity leave in addition to their existing two week entitlement.
Current Entitlement
At present, eligible employees may take up to two weeks’ paternity leave (in a single block of either one or two weeks). Some employers may offer more leave but this is at their discretion.
Changes to Paternity Leave
The changes to paternity leave apply to parents of a baby due on or after 3 April 2011 and to adoptive parents who are notified that they have been matched with a child on or after that date.
The new regulations preserve the existing right to take two weeks’ paternity leave (this is known as ‘Ordinary’ Paternity Leave (or ‘OPL’)) but also introduce the right for employees to take between two and 26 weeks’ ‘Additional’ Paternity Leave (‘APL’) taken from the balance of any remaining maternity/adoption leave after the child’s mother/adopter has returned to work. This may be taken anytime from 20 weeks after the child is born but the leave must finish by the child’s first birthday.
Eligible Employees
To be eligible to take paternity leave, an employee must satisfy the following criteria.
The employee must have:
▪ at least 26 weeks continuous employment;
▪ a relationship with the child and its mother or adopter; and
▪ have or expect to have responsibility for the upbringing of the child.
The right to additional paternity leave applies where:
1. the employee is the child's biological father or the spouse or partner (of either sex) of the child's mother; or
2. the employee is the spouse or partner (of either sex) of the person who, having been matched for adoption has elected to take adoption leave; and
3. the employee's spouse, civil partner or partner has returned to work without having taken their full entitlement of 52 weeks Maternity or Adoption Leave.
APL must be taken to care for the child and it must be taken in multiples of complete weeks, lasting a minimum of two weeks, up to a maximum of 26 weeks.
Notice Period
Employees must give eight weeks' notice of their intention to take APL. Their employer must then confirm the start and finish dates of their APL within 28 days of receipt of the notice.
Is APL Paid?
The Additional Statutory Paternity Pay (ASPP) scheme mirrors the Ordinary Statutory Paternity Pay (OSPP) scheme which pays the lesser of either the fixed rate set by the government each tax year (£124.88 since 4 April 2010) or an earnings-related weekly rate of 90% of the employee’s normal weekly earnings.
For a father or partner to receive ASPP, the mother or adopter must have been entitled to Statutory Maternity Pay (SMP) or Statutory Adoption Pay (SAP) and must have returned to work with at least two weeks of their pay period remaining. The total number of weeks of ASPP that the employee will receive will depend on the number of unused weeks of the SMP/SAP that are left when the spouse or partner returns to work.
To be eligible to receive ASPP an employee must have a relationship with the child and the child’s mother or adopter; have been in continuous employment for at least 26 weeks with the same employer; have received normal weekly earnings for the period of eight weeks ending with the relevant week before the ASPP begins and be taking APL in order to care for the child.
Can APL be in addition to Parental Leave?
The rules regarding Parental Leave have not changed. However, an eligible employee wishing to postpone their return to work may also decide to apply for unpaid parental leave.
Return to Work
Eligible employees who take paternity leave will be entitled to return to the same job under the same conditions. However, employees who combine APL with a period of more than 4 weeks parental leave may be offered suitable alternative positions if it is not reasonably practicable for the employee to return to their previous job.
For more general guidance concerning paternity leave and paternity pay, click here.
Should you require any specific advice on matters raised in this article, please contact the Employment Team at SA Law on 01727 798000.
© SA LAW 2011
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