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How paternity leave rules have changed

Lawyer Debbie Sadler looks at the recent changes to fathers' rights for additional paternity leave

Fathers of babies born or matched for adoption on or after 3 April 2011 now have a right to additional paternity leave, subject to certain eligibility requirements.

This is a new right and can be taken in addition to an employee's existing right to two-weeks ordinary paternity leave. A minimum of two and a maximum of 26 weeks additional paternity leave can be taken provided the mother returns to work before their statutory maternity or adoption leave ends.

Leave must be taken in one week blocks, all in one go and only once the child is 20 weeks old (but before their first birthday).

Who qualifies?

The eligibility requirements are very similar to those who wish to take ordinary paternity leave. The right applies not only to fathers, but also to a spouse, partner or civil partner of the baby's mother. In order to claim additional paternity leave the employee needs to:

• be continuously employed by the same employer for at least 26 weeks before the end of the 15th week prior to the expected week of childbirth;

• still be employed by the same employer at the start of additional paternity leave; and

• have or expect to have main responsibility for the upbringing of the child (apart from the mother).

In addition, for the employee to be eligible, the child's mother must have been entitled to statutory maternity leave, maternity pay or maternity allowance and have returned to work. Once additional paternity leave has begun the mother will not be entitled to any further statutory maternity leave or pay.

What notice should staff give?

Those employees who wish to apply for additional paternity leave need to notify their employer in writing of the following, at least eight weeks before their leave starts:

• the fact they wish to take additional paternity leave;

• the proposed start and end dates for additional paternity leave; and

• the expected week of childbirth and the actual birth date.

In addition to the above, the employee must sign a declaration confirming their eligibility, their relationship with the mother and child and when their leave will start. The mother should also provide a signed declaration to include information such as when she intends to return to work and that the employee applying for additional paternity leave is the father/partner.

Standard forms for making the required declarations are available from HMRC. Alternatively, employers can develop their own standard forms.

Once a request for additional paternity leave is received, the employer must write to the employee within 28 days confirming the start and end date of additional paternity leave. Any further information the employer requires must be requested within 28 days of the original notice.

Can the member of staff later change their application for leave?

The employee can change the proposed dates of additional paternity leave or cancel their additional paternity leave provided they give their employer at least six weeks prior written notice, unless this is not reasonably practicable.

The employer must again, within 28 days, notify the employee of their additional paternity leave end and start dates. If notice is not given within the six-week time limit and it is not reasonably practicable for the employer to incorporate the change, then the employer may require the employee to still take a period of additional paternity leave. This right applies even if additional paternity leave has not yet begun.

What should the member of staff be paid?

Employees may also be entitled to additional standard paternity pay if they meet the eligibility requirements for additional paternity leave and ordinary standard paternity pay.

At the time the mother returns to work she must have at least two weeks statutory maternity pay, maternity allowance or statutory adoption pay remaining. Any remaining statutory pay may be transferred to the father/partner at the same rate. Payment will only be made for the balance of the 39-week payment period to which the mother is entitled.

Other rights

During additional paternity leave all of the employee's terms and conditions, save for those relating to pay, will remain in force. The employee will also be entitled to 10 'keeping in touch days'.

Those employees on additional paternity leave will also have similar rights to employees on maternity leave if their role is put at risk of redundancy. On their return to work the employee will usually be entitled to return to the same job they were employed in before their additional paternity leave started. Employees have the right not to be subjected to a detriment or dismissed for having taken or sought to take a period of additional paternity leave.

Debbie Sadler is a senior employment solicitor in Blake Lapthorn's Health and Care sector group,

Debbie Sadler is a senior employment solicitor in Blake Lapthorn's Health and Care sector group,