Paternity leave – what do you need to know?

With 690,00 live births in the UK in 2017, and 213,500 father’s taking leave accordingly, it is inevitable that most businesses will face discussions around paternity rights, pay and leave. For SME’s, dealing with paternity leave can often be daunting, but having a firm grasp of UK law, and the legislative requirements that businesses must abide by can often help to quell any misplaced fears.

What is statutory paternity leave?

Statutory paternity leave refers to a period of one or two, usually consecutive, weeks that fathers or partners can take away from work in order to support their partner and help to care for their new baby.

Statutory paternity leave is available to those having a new baby with a partner, (or they are the current partner of the women having the child), adopting a child, or having a child through surrogacy.

Who is entitled to paternity leave?

Paternity leave is available to the employees of a business. Most agency and contract workers are not eligible for paternity leave. However, an agency worker may qualify for paternity leave if they meet certain qualifying criteria (see below). If so, they should write to their agency at least 28 days prior to when they would like payment to start, stating their name, the baby’s due date, the date they would like payment to begin, and whether they are claiming for one or two weeks’ pay.

Paternity leave is available to employees who meet the following criteria:

• Have, or expect to have responsibility for the child’s upbringing
• Are the biological father of the child, the mother’s husband or partner (including same sex couples) or the partner of the primary adopter.
• Have worked continuously for the same employer for more than 26 weeks, ending with the 15^th week before the baby’s expected due date, or the end of the week in which the child’s adopter is notified of being matched with the child (for a UK adoption), or else the date in which the child enters the UK (overseas adoption).

What paternity rights do agency workers have?

Agency and contract workers do not have the right to take paternity leave, but may have access to alternative types of leave that could be used as a substitute. These could include:

• Shared Parental Leave (SPL): This provides parents with more flexibility as to how they share the care of their child in the first year following birth or adoption. Eligible parents can exchange part of their Maternity or Adoption leave for SPL. This is explained in further detail later on.
• Annual leave: An employee could submit an annual leave request in order to take time off when the baby is born. This must be done in accordance with their usual annual leave policy, and the employer would also retain the right to accept or decline the request in line with wider business needs.
• Unpaid time off: An employee could initiate a discussion with their employer around taking unpaid time away from work to coincide with the child’s birth. Again, this scenario would first have to be mutually agreed by both the employee and employer.

When should an employee request paternity leave?

This is largely dependent on the reason behind the request for paternity leave:

In the case of a birth, an employee should inform their employer of their intentions no later than the end of the 15^th week before the expected week of childbirth that they wish to use as the starting point for leave. An employee can choose for their paternity leave to begin on:

• The day that the baby is born
• A specific number of days after the baby is born
• A specific date that is not earlier than the baby’s due date

Paternity leave cannot start before the baby is born, and of course the baby may also not arrive when expected. As an employer, you should therefore be prepared to be as flexible as possible when arranging cover for employees intending to take paternity leave. It should also be noted that employees must complete their entire period of paternity leave within 56 days of the actual date of birth of the child.

In the case of adoption arrangements, one partner, if qualified to, can take adoption leave as the main adopter, and the other is likely to be entitled to paternity leave.

A period of paternity leave when adopting a child can start:

• On the date of placement
• An agreed number of days after the date of placement
• On the date the child arrives in the UK, or an agreed number of days after (for overseas adoption)
• The day the child is born, or the day after for surrogate parents

In the case of all adoptions, an employee will need to have taken their paternity leave within 56 days of the actual birth or placement of the child.

Attending antenatal or adoption appointments?

Expectant fathers and the partners of pregnant women are untitled to unpaid time off during working hours to accompany their partner to two ante-natal appointments. The time off should not exceed more than 6.5 hours per appointment, and should also include travel time. If the appointment takes less than 6.5 hours, the employee should return to work unless otherwise agreed.

There is no legal right to paid time off for attending antenatal appointments, but your standard employment contract may well entitle your employees to paid time off. If an employee does not want to take unpaid time off, they could request to take annual leave, or else make up their hours at another time.

The right to two antenatal appointments also extends to employees who are to become parents through a surrogacy arrangement if they satisfy the conditions for a Parental Order. The main adopter is entitled to unpaid time off for up to five adoption appointments, with the secondary adopter able to take time off for two appointments.

How is paternity pay calculated?

Employees who take paternity leave are entitled to either Statutory Paternity Pay or Contractual Paternity Pay:

• Statutory pay: This type of pay will be payable if an employee has been:
  • Working continuously for one company for at least 26 weeks, ending with the 15^th week before the expected week of childbirth AND
  • Has average weekly earnings at least equal to the lower earnings limit for National Insurance contributions.

From April 2019, the rate of statutory maternity and paternity pay is £148.68 per week, or 90% of the employee’s average weekly earnings, whichever is less.

• Contractual: As an employer, you may choose to offer a rate of pay that is higher than the statutory rate. The amount and length time that it is paid for should be set out clearly in your terms and conditions document. Contractual paternity pay cannot be lower than statutory pay.

What happens with still births or sick babies?

If a baby is stillborn after the 24^th week of pregnancy, or is born alive at any point, (even if it later passes away), the father or partner of the baby’s mother is still entitled to full paternity rights if they satisfy all other paternity conditions.

When a baby is born prematurely or with additional health needs, your employee may well not be preoccupied with work matters. As an employer, you should offer appropriate workplace support for parents with premature or sick babies in these circumstances.

What rights do employees have during, or because of paternity leave?

An employee has the right to be treated no less favourably for taking, or proposing to take, paternity leave. They also have the right to return to their own job following a period of paternity leave, and their terms and conditions must also remain the same.

During paternity leave, your employee is legally entitled to benefit from their usual terms and conditions of employment, except for normal remuneration (monetary wages or salary), although they may be entitled to receive paternity pay. This includes:

• Paid holiday
• Protection from unfair dismissal
• Pension payments and rights
• Any workplace benefits that they would normally receive (eg. Gym memberships, medical insurance etc.)

How is unfair treatment during, or because of, paternity leave dealt with?

If your employee feels that they have been treated unfairly, either directly or indirectly because of paternity leave, then they should first raise the issue with you informally. Usually, this allows for minor issues to be resolved quickly via a conversation with a line manager or other appropriate person within the business.

If they are unhappy with the outcome of an informal meeting, they then have the option of raising a formal complaint. This must be done in writing, and should make you aware of how strongly they feel about the situation, whilst simultaneously providing you with a further opportunity to resolve it.

As a last result, they could take you to an employment tribunal. There is generally a three-month time limit for bringing a claim to tribunal, but this can be paused if Early Conciliation (an informal resolution process between both parties) is taking place. Further information on tribunals can be found here.

Do paternity leave and Shared Parental Leave (SPL) work together?

Paternity leave and SPL can work together, but they cannot be taken by the employee at the same time. Eligible employees can take one or two weeks paternity leave within the first 56 days of a child’s birth and/or adoption, and then one or more periods of SPL at any time before the child’s first birthday, or the one-year anniversary of their adoption date. You can find further information on SPL rules and legislation here.

Paternity leave can be a minefield for employers, especially those with limited initial knowledge, and/or in the SME space. However, understanding the complexities and legal requirements is vital if you are to not only avoid discrimination claims, but also ensure that your workers leave for paternity feeling valued, supported and motivated to return to their role. Ultimately, providing a fair and attractive paternity leave policy will support you in recruiting and retaining great business talent.