In this article we discuss ordinary paternity leave, when it can be taken and who out of your employees is eligible to take it.
What criteria does an employee have to meet to qualify for ordinary paternity leave?
To qualify for ordinary paternity leave (OPL) an employee must meet the following criteria:
- Have at least 26 weeks’ continuous service by the beginning of the 14th week before the expected week of childbirth;
- Give the correct notice period;
- Have a relationship with the child;
- Be the biological father of the child;
- Be married to or have an enduring relationship with the child’s mother; or
- Be adopting a child.
What notice does the employee have to give me, as their employer?
An employee wishing to take OPL must give the required notice at least 15 weeks before the baby is expected. They must tell you the expected week of childbirth; the period of leave to be taken (which may be in one block of either one or two weeks) and the date the leave will start (this can be changed with 28 days’ notice). OPL must be taken within 56 days of the expected week of childbirth, or due date if the baby is born early. Eligible employees can choose to take either one week or two consecutive weeks’ paternity leave (not odd days).
Does an employee still have employment rights during paternity leave?
During OPL, the employee is entitled to all benefits that they would have received had they not been on paternity leave, except wages and salary (but including benefits in kind). This means that the contract of employment continues and the period on paternity leave counts towards their continuity of employment. An employee’s employment rights (holiday, pay and return to work) are protected during paternity leave.
An employee returning after paternity leave has the right to return to the same job. The employee also has the right not to be subjected to any detrimental dismissal because they took or sought to take paternity leave and any such dismissal will be automatically unfair. Please note that the same exemption for small companies applies in relation to adoption leave.
Are my employees entitled to paternity pay?
Statutory paternity pay (SPP) is a payment that you’re required to make to eligible employees, even if the employees don’t intend to work after the child is born. Employees must request statutory paternity pay at least 28 days before they want it to start. Employees can use form SC3 to do this. You should take a copy and return it to them.
An employee qualifies for SPP (currently at the rate of £138.18 per week or 90 per cent of their average weekly earnings, if lower) if:
- They have a right to take paternity leave;
- They have normal weekly earnings that are at least £111 gross in an eight-week relevant period;
- They give at least 28 days’ notice (unless this isn’t reasonably practicable) of the date from which they expect SPP to be paid; and
- They have completed a self-declaration that they are entitled to receive SPP.
Employees still qualify for paternity pay if the baby is either:
- Stillborn from 24 weeks of pregnancy;
- Born alive at any point in the pregnancy but later dies.
You may be able to recover statutory paternity pay from HMRC. Your payroll software should be able to tell you how much you can recover.
What happens if my employee is adopting a child?
To qualify for paternity leave an employee adopting a child must:
- Have worked for you continuously for at least 26 weeks by the end of the week that they were matched with a child (for UK adoptions);
- Have worked for you continuously for at least 26 weeks by either the date the child arrives in the UK or when they want their pay to start (overseas adoptions);
- Confirm in writing that their partner is receiving statutory adoption pay by giving you a copy of their partner’s SC6 form;
- Meet the other eligibility criteria for paternity leave and pay mentioned earlier in this article.
An employee adopting a child must give you a copy of their form SC4 for:
- Leave – no later than seven days of their co-adopter or partner being matched with a child;
- Pay – 28 days before they want their pay to start.
For overseas adoptions the notice period is different. It’s explained on form SC5.
An employee adopting can start their leave on the date of the placement; an agreed number of days after the date of the placement; on the date the child arrives in the UK or an agreed number of days after this (overseas adoption).
Leave must be taken within 56 days of the date of the placement or the child’s arrival in the UK (overseas adoption).
Employees must give you proof of adoption to qualify for paternity pay. This can be their matching certificate or a letter from the adoption agency.
Shared parental leave reforms
Shared parental leave is due to be introduced in December. It’s a new right that will allow eligible employees – who are mothers, fathers, partners and adopters – to choose how they share time off from work after their child is born or adopted. To take shared parental leave, the baby must be due to be born – or placed for adoption – on or after 5 April 2015.
Help from Lawpack
If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.
Download our solicitor-approved Paternity Leave Policy to protect your business and comply with employment law.
