- 8 minute read
- Last updated: 15th October 2019
Employers have to meet a number of legal responsibilities when an employee is on paternity leave. We look at what employers should do to support their employees while ensuring compliance with the rules on paternity in the workplace.
This article covers:
- Employee paternity rights
- Eligibility for paternity leave and pay?
- How long is paternity leave?
- How much is paternity pay?
- Paternity discrimination
- What is shared parental leave?
- Paternity leave record-keeping
- Return to work rights
- Leave for antenatal and adoption appointments
- Paternity policy guidance
Where an employee is expecting a baby and will have paternal responsibility for the child, they may be eligible for paternity leave and pay. Paternity leave can apply where the child is born to the employee’s partner or to a surrogate, or is adopted.
It is important to note that during the period of paternity leave, the father’s employment rights continue to be protected, such as:
- Right to be paid
- Right to be informed of changes to their job and working conditions, e.g. the risk of redundancy
- Right to accrue holiday
- Right to be treated fairly and without discrimination, including discrimination for taking paternity leave
- Right to receive appropriate pay rises, bonuses and company benefits, e.g. company car
- Right to return to work
Eligibility for paternity leave relies on the following conditions:
- The employee will be responsible for raising the child
- The employee is:
- the biological father of the child, or
- the husband or partner of the child’s mother, or
- the husband or partner of the primary adopter of the child, or
- the primary adopter
- The employee must have been employed continuously for 26 weeks or more:
- by the time of the fifteenth week before the baby will be born, or
- by the end of the week when the primary adopter is told that they have been placed with a child in the UK, or
- in the case of an adoption from overseas, the date when the child arrives in the UK
Eligibility for paternity pay relies on the above factors and:
- The employee works for the employer up to the birth
- The employee earns a minimum of £118 a week (before deductions) over a period of 8 weeks that is relevant to the leave
- The employee provides the correct notice
- The employee will use the paternity leave to care of the baby and/or their partner
The employee is entitled to statutory sick pay if the baby is stillborn from the 24th week of pregnancy.
Employers must offer a statutory minimum of two weeks’ paternity leave to eligible employees. This applies whether the leave relates to one child or multiple.
The employee can take one week or two weeks consecutively after the baby has been born.
If your organisation offers employees more than the statutory two-week leave, this should be detailed within a paternity leave policy.
Employees are required to notify their employer of the date the baby is due no later than 15 weeks before the expected date of childbirth and also of when they expect to start their paternity leave. They should also state whether they intend to take one or two weeks off as paternity leave.
Notice of paternity leave can be given verbally, but is it advisable to request that it be put in writing to retain on record.
Paternity leave usually starts on the day the baby is born but it may also start after the birth or due date, provided the employer agrees to this. This will necessarily require flexibility on the employer’s part in respect of cover, since the baby may not be born on its due date.
If the employee has confirmed they will start their paternity leave on the date of birth, and they are in work the day the child is born, paternity leave will start the following day.
Paternity leave must be finished by 56 days after the birth. Paternity leave may not be taken before the birth.
If the baby is born early, and provided the employee has worked for the employer for a minimum of 26 weeks by the qualifying week and meets all other criteria, they would still be eligible to take paternity leave. If the employee has already given notice of their intended start date for paternity leave, they should advise you as soon as reasonably possible that the baby has been born and if they will be starting their paternity leave early.
If the child arrives before the employee has submitted their SC3 form, this must still be completed and returned to you as soon as reasonably possible to confirm the due date and actual date of birth.
In many cases, fathers may request to take annual leave after the baby is born. Such requests should be handled in the usual way for time off work for holidays, meaning you can accept or refuse on the basis of business need. Likewise, the employee may ask to take time off unpaid, for example as dependants’ leave, but again this must be agreed with you first.
Leave for adoption
Paternity leave may also be taken where an employee is adopting a child or is the partner of the primary adopter.
Eligibility, conditions and notice are similar to those for birth parents except:
- where the child is adopted from the UK, the date of birth is swapped for the date when the adopted child is placed with their primary adopter or an agreed number of days after the date of placement
- where the child is adopted from overseas, the date of birth is swapped for the date the adopted child arrives in the UK or an agreed number of days after
- the employee must confirm in writing that their partner will receive statutory adoption pay or provide a copy of their partner’s form SC6
- when giving notice of an adoption and making a request for paternity leave, the employee must provide this at least 28 days before they would like paternity pay to begin, and the start date of the paternity leave must be no more than 7 days after their partner is matched with an adopted child
- paternity leave may begin:
- in the case of a UK adoption, when the child is placed with the employee or an agreed number of days after the child is placed
- in the case of an overseas adoption, when the child arrives in the UK or an agreed number of days after the child arrives from overseas
- to be granted paternity pay, the employee must provide proof of the adoption, such as a letter from the related adoption agency
For all adoptions, an employee will need to have taken their Paternity Leave within 56 days of the placement date.
Leave for surrogate fathers
Where the child will be born to a surrogate mother, the father can take paternity leave from the day the child is born or the day after.
Leave for stillborn babies
Employers are encouraged to provide support to employees who have suffered the loss of a baby or where their child is born premature or sick.
Provided they meet the qualifying criteria for paternity leave, the employee would be eligible for full paternity rights if the child is stillborn after the 24th week of pregnancy or born alive and later passes away.
During paternity leave, eligible employees should receive statutory paternity pay of the lower amount of £148.68 per week or 90% of their average weekly earnings. Deductions will be made from this amount for tax and national insurance.
If your organisation offers contractual paternity pay, this cannot be lower than the statutory amount. Again, this should be detailed within the paternity policy for clarity.
For adoptions, paternity pay should not start until you have been given confirmation that the child has been placed. The expected date of placement should not be relied on to start paternity pay.
Employees are protected by law from workplace discrimination on the grounds of paternity leave or as a result of exercising or seeking to exercise their paternity rights.
This means their employment terms and conditions should not be changed by reason of paternity and their usual employment rights under contract and statute still apply, such as the right to take annual leave.
Where an employee considers they have been treated unfairly by reason of paternity, they may be able to raise a formal complaint which, if not resolved, could escalate into a tribunal claim.
Employees should be encouraged to try to raise any concerns informally with their line manager or appropriate contact in the organisation first to attempt to resolve the matter.
Where the employee feels paternity leave does not provide sufficient time for them to care for their child and partner, it may be that Shared Parental Leave offers a solution.
Employees may be eligible for more leave or pay if their partner returns to work and they qualify for Shared Parental Leave (SPL). SPL allows both parents to share the mother’s entitlement to maternity leave, together with her right to statutory maternity pay through shared parental pay (ShPP).
Where eligible for SPL and ShPP, parents can share up to 50 weeks of leave and up to 37 weeks of pay during the first year after the child is born. The leave does need not be taken altogether but can be used in ‘blocks’, separated by periods of work. Parents can also choose to be off work together, or to stagger their leave.
To be eligible for SPL and ShPP, the employee will need to give reasonable notice and also meet the relevant work and pay criteria:
- Have been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth
- Stay with the same employer while you take SPL
- Be classed as employees and not workers
- Each earns on average at least £118 a week
The criteria can, however, differ depending on how the leave will be used, for example, if sharing the leave equally or where the employee’s partner is taking more of the leave. Taking advice can ensure you proceed correctly in line with how the employee is choosing to take their shared leave.
Should an employee take paternity leave, the employer must keep a record of the following:
- start date of the statutory paternity pay
- paternity payments made – amount and date
- any paternity payments that have been reclaimed
- weeks where the employer did not make paternity payments and the reason this happened
- in the case of adoption, proof such as a letter from the adoption agency
These records must be retained for a period of 3 years from the end of the tax year during which they were created.
These records will form part of the employer’s standard reporting to HMRC.
An employee who takes paternity leave has the right to return to their job under the same pay and working conditions.
Employers should allow employees who are fathers or the partner of a pregnant woman or the intended parents of a surrogate baby to take unpaid time off work to attend a maximum of two antenatal appointments.
The time taken off for each appointment should not exceed six and a half hours and must include travel time. Generally, the employee should return to work if the appointment and travel take less than six and a half hours, unless otherwise agreed with the employer.
As an alternative to unpaid time off, an employee may choose to use annual leave to attend the appointment, or they may ask their employer if it is possible to make up the time taken. This will be at the employer’s discretion but you should ensure consistency in your approach to avoid complaints of unfair treatment.
The employee would not have the right to paid time off for antenatal appointments unless there is provision for this within their employment contract or the organisation’s paternity policy.
In the case of adoption, the ‘main’ adopter can take time off on a paid basis for up to five adoption appointments while their partner is entitled to take unpaid time off for up to two appointments.
Employees may have recourse to make a formal complaint or legal action if you fail to meet your duties during paternity leave, such as paying the full entitlement, or where the employee can show they have been subject to unfair treatment because of their paternity leave.
The most effective way to avoid disputes is to have a robust paternity policy in place which sets out the expectations and requirements on both the employer and the employee. A paternity policy sets out the procedures that an employer should follow, helps employees know what is expected of them and what in turn to expect from their employer, and protects against disciplinary and legal action.
A paternity policy should be written in consideration of any related legislation to suit the business’ needs while supporting employee wellbeing and could include:
- Eligibility for paternity leave and pay, e.g. being an employee with a certain length of service
- Details of paternity leave and pay, e.g. how long is paternity leave and how much will an employee be paid
- Giving notice, e.g. how and when
- Paternity leave in the case of adoption
- Rights during paternity leave
- Return to work rights
Any paternity policy should be supported with training of relevant personnel, including HR and line managers to ensure effective implementation and handling of paternity leave and pay matters, and return to work.
Effective management of paternity leave requires careful planning and an infrastructure that supports both compliance with your duties under law and the wellbeing of your employees.
DavidsonMorris are experienced employment law specialists offering guidance and support to employers in relation to paternity leave, pay and rights. To discuss management and compliance with your duties, contact us.