Employment: New paternity rights available for new and adoptive parents from 3 April 2011

Estimated reading time 3 minutes

On 6 April 2010, regulations came into force granting new rights to additional paternity leave and pay for parents with children due on or after 3 April 2011. The new rights will also apply to adoptive parents who have received notice of an adoption ‘matching’ on or after this date

Period of leave and payment

Eligible employees will, from 3 April 2011, be entitled to up to 26 weeks additional paternity leave (“APL”) to care for a child under the age of one or during the first year following birth or adoption.  Certain eligibility criteria must be satisfied but, broadly, for an employee to be eligible for the additional leave, the mother must have returned to work, without having taken her full statutory maternity (or adoption) leave entitlement.  In addition, the leave can only be taken by a father once the child is more than 20 weeks old (or it is more than 20 weeks since the adoption took place).

Fathers must give at least 8 weeks’ notice of their intention to take APL and leave must be taken in one continuous period, in multiples of complete weeks, with a minimum of 2 weeks and a maximum of 26 weeks.  During consultation on the new Regulations employers expressed concern about the potential for abuse of the right to APL.  The system relies primarily on self-certification; however employers will have the option to ask for certain additional proofs if they feel it is necessary to do so.  Proof of eligibility will be in the form of an “employee declaration” and a “mother declaration” no less than 8 weeks before the leave is to start.  The employer may, within 28 days of receiving this information request that the employee provides a copy of the baby’s birth (or adoption) certificate and the name and address of the mother’s employer.

The leave may be paid if it is taken during the mother’s maternity pay period and the mother was entitled to maternity allowance, statutory maternity pay or statutory adoption pay.  It will be paid at a weekly rate, being the lower of £124.88 or 90% of the normal weekly earnings of the person claiming.

As with maternity leave, employees on APL may do up to 10 days’ work during APL without bringing the leave to an end and employers are entitled to maintain reasonable contact with them throughout the leave period.  Employees taking APL also have a right to return to their former job at the end of APL and are protected from any detriment arising because of their taking APL.

Commentary

The Government has stated that guidance will be released before 3 April 2011 to raise awareness of the changes and to ensure that both employers and employees have the necessary information to determine whether an employee will be eligible.

Resources

The Additional Paternity Leave Regulations 2010/1055

The Additional Statutory Paternity Pay (General) Regulations 2010/1056

The Additional Paternity Leave (Adoptions from Overseas) Regulations 2010/1059

The Additional Statutory Paternity Pay (Adoptions from Overseas) Regulations 2010/1057

The Additional Statutory Paternity Pay (Weekly Rates) Regulations 2010/1060

The Employment Rights Act 1996 (Application of Section 80BB to Adoptions from Overseas Regulations 2010/1058

"Extension to paternity leave revisited - employers fear administrative burdens and scope for fraud 30 September 2009"

For further information or to discuss the issues raised, please contact Guy Abbiss on +44 (0) 203 051 5711.