By Katy Jones, Solicitor In Keystone's Employment, Pensions and Incentives Team.
Katy Jones outlines the new regulations for fathers who will be able to take additional paternity leave and receive additional paternity pay from April 2011.
Under the Labour government, legislation was passed creating new employment rights called "additional paternity leave" and "additional statutory paternity pay". As their names suggest, these are new rights that are in addition to the existing rights of statutory paternity leave and pay. The new provisions will come into force in April and will apply in relation to babies due to be born on or after 3 April 2011.
The regulations also apply in relation to domestic adoptions for children matched for adoption on or after 3 April 2011. For overseas adoptions they apply to children entering Great Britain on or after 3 April 2011.
The regulations apply to same sex couples, but or the sake of simplicity, we refer in this article to "mothers" and "fathers".
The legislation provides that where a mother returns to work before having taken her entire year of maternity leave, the father will be able to take the unexpired part of her statutory maternity leave and to claim statutory paternity pay in respect of the period during which the mother would have continued to receive maternity pay if she had remained on maternity leave.
Additional paternity leave
To qualify for additional paternity leave, the father must have been employed for at least 26 weeks' by the qualifying week, i.e. the end of the 15th week before the start of the week when the baby is due.
In addition, the father must be taking the time off to care for the child and the child's mother must:
- have been entitled to one or more of the following: statutory maternity leave, statutory maternity pay or maternity allowance; and
- have returned to work and ceased claiming any relevant statutory pay.
Additional paternity leave is available for a maximum of 26 weeks. It cannot be taken less than 20 weeks after the child is born and must be taken within the first year of the child's life.
Eight weeks before the father wishes to commence his additional paternity leave, he must provide his employer with:
- notice of when he wishes his leave to start and end;
- a declaration that he is taking the leave to care for his child; and
- a declaration from the mother, including her name, address and national insurance number and when she intends to return to work.
On returning to work after taking additional paternity leave, the father has the right to his old job back if he took less than four weeks of leave. If he has taken more than four weeks of leave, he is entitled to his old job or if that is not reasonably practicable "another job which is both suitable for [the father] and appropriate for [the father] to do in the circumstances".
A father taking additional paternity leave can return early but he must give his employer six weeks' notice. If the father does not do so, the employer can postpone the father's return by up to six weeks.
Additional statutory paternity pay
A mother who has been employed by the same employer continuously for at least 26 weeks into the 15th week before the week her baby is due (the qualifying week) is currently entitled to 39 weeks of statutory maternity pay. Other mothers may instead be entitled to statutory maternity allowance.
If the mother returns to work before exhausting her entitlement to statutory maternity pay or maternity allowance, the father may be entitled to receive additional statutory paternity pay during the unexpired part of the period when she would have received these allowances.
To qualify for additional statutory paternity pay, the father must have been employed for at least 26 weeks by the qualifying week. In addition, the father must still be employed by the same employer until the week before the period of additional statutory paternity pay commences.
Additional statutory paternity pay is only payable to the father during the mother's maternity pay or allowance period. In order that the father can qualify for additional statutory paternity pay, the mother must have:
- returned to work; and
- stopped claiming any relevant pay, with at least two weeks of unexpired statutory pay period remaining.
In respect of the year from April 2011 to April 2012, additional statutory paternity pay will be £128.73 a week or 90% of the father's average earnings if he earns less than £128.73 a week.
The notification requirements for fathers wishing to claim additional statutory paternity pay are very similar to the notification requirements for additional paternity leave.
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