By Alexis Asher is a Solicitor at SA Law, www.salaw.com

Changes made to the Paternity Leave rights

An extension to family-friendly rights in the workplace has taken effect from 3 April 2011 . Whilst this has been welcomed by many as a step towards increasing equality between the sexes, how will the changes impact on small to medium businesses in practice? Already there is concern that these changes will make life more difficult for SMEs in an already tough climate. Considered below are some of the main points employers will need to bear in mind, and tips on how to avoid failing foul of the new regulations.

The main change is that it is now possible for new fathers to take up to 26 weeks Additional Paternity Leave (“APL”) in additional to the two weeks statutory leave, known as Ordinary Paternity Leave (“OPL”).

Under the new regulations, the new father retains the right to OPL, but they now have the right to take a share of the mother’s maternity leave, which can be from 2 to 26 weeks.

APL can be taken anytime from 20 weeks after the child is born but must finish by the baby’s first birthday. This gives couples the flexibility to split their maternity and paternity leave rights to care for their baby, and offers fathers a greater opportunity to be involved in raising their child.

These new changes are complex and can be difficult to facilitate. What will SMEs need to bear in mind when confronted with a request to take APL? Below are some of the key points:-


In order to qualify for APL the employee must have been continuously employed by you for at least 26 weeks. The employee must be the biological or adoptive father of the baby or the spouse or partner of the baby’s mother and have, or expect to have, responsibility for the upbringing of the baby. The employee must give you at least 8 weeks notice before the date on which they intend to take their APL leave. The APL can be taken anytime from 20 weeks after the baby is born but must finish by the baby’s first birthday.

The employee’s spouse, civil partner or partner must have been entitled to Statutory Maternity Pay (SMP) and must have returned to work without having taken her full entitlement of 52 weeks maternity leave. APL is taken from the balance of any remaining maternity or adoption leave after the baby’s mother has returned to work. This allows couples to have the option of splitting their maternity and paternity leave rights to care for the baby.

Is APL paid?

APL is paid leave but only at the lesser of either the fixed rate set by the government each tax year, or 90% of the employees’ normal weekly earnings. To receive this pay the employee must meet the eligibility criteria and the mother must have been entitled to SMP and have returned to work. The total number of weeks of paternity pay that the employee will receive will then depend on the number of any unused weeks of the SMP that are left when the spouse or partner returns to work.

Returning to work after APL and Parental Leave

Employees who take APL will be entitled to return to the same job under the same conditions. Employees who wish to postpone their return to work may also decide to apply for unpaid Parental leave. Employees who combine APL with a period of more than four weeks Parental leave may be offered suitable alternative positions if it is not reasonably practicable for the employee to return to their previous job.

The effect on businesses

This entitlement to take APL could prove particularly problematic for SMEs. For many it will put further strain on an already small workforce. In terms of recruitment employers will need to plan ahead to cover periods of employee leave. Surveys carried out following the new leave rights have established that three in 10 small business owners would think twice about the staff they employ as a result of the changes. In the long-term this could impact upon recruitment habits and could result in those employees who are considered likely to start or continue a family left out in the cold.

It can also lead to uncertainty amongst the workforce. Employers may be faced with women returning earlier than anticipated, in order to share their leave with their partners and there may also be an increase in men seeking to take additional periods of leave, who would previously have taken only the statutory two weeks.

The main beneficiaries of the APL scheme may be couples where the mother is earning more than the father. However, surveys have shown that despite improvements in women’s pay, many men tend to still earn more than women, so in many circumstances it will make financial sense for the men to continue earning their full pay. Although the new additional paternity leave rules are in place, many fathers may decide not to take up this option if they are earning more than the mothers. In addition, many women may still want to take the full extended leave available following the birth of the baby.

Regardless of what couples decide to do, one thing for certain is that companies will need to have clear and up-to-date paternity policies in place, and they will have to consider this extension of rights in their strategy planning. In an already difficult economic climate, SMEs will need to give careful consideration to how employees are managed, to avoid the pitfalls associated with family-friendly rights.