A new statutory right has been introduced which allows eligible employees (usually fathers) to take a period of additional paternity leave (“APL”) of up to 26 weeks to look after a newly born child. It applies where the baby in question is due to be born on or after 3 April 2011.

Key elements of the scheme

The new scheme will provide eligible employees (usually fathers, but the mother’s partner may be eligible whether or not they are the father and whether or not they are a same or opposite sex partner) with the right to up to 26 weeks’ APL. The APL is to allow the employee to care for a child if the child’s mother returns to her work without exercising her full entitlement to maternity leave. The scheme will therefore give parents the option of dividing the period of leave entitlement between them.

The entitlement to APL is in addition to the existing right to two weeks’ paternity leave which may be taken within the first eight weeks of the child’s life. This existing right will now be known as ordinary paternity leave (“OPL”).

Eligibility

Employees are entitled to take APL for the purposes of caring for a child if:

• they have been continuously employed for a period of not less than 26 weeks ending with the relevant week (which is the week immediately before the 14th week before the expected week of childbirth); and
• they remain in continuous employment with their employer until the week before the first week of APL; and
• they are the child’s father or married to the child’s mother or the partner or civil partner of the child’s mother; and
• they have or expect to have, the main responsibility (apart from the mother) for the child’s upbringing; and
• they have complied with the notice and evidential requirements referred to below; and
• the mother has satisfied the conditions set out below.

Notice and evidential requirements

The employee seeking APL must, not less than eight weeks before the start date of the APL, give to the employer:

• a leave notice and employee declaration; and
• a mother declaration.

The “leave notice” is a written notice specifying the expected week of childbirth, the actual date of birth and the start and end dates of the period of APL. The “employee declaration” is a written declaration signed by the employee, stating that the period of leave will be to care for the child and that the employee satisfies the necessary relationship and responsibility.

The “mother declaration” is a written declaration by the mother stating her name and address, the date she intends to return to work, her National Insurance number, that the employee taking APL satisfies the conditions relating to relationship and responsibility, that the employee taking APL is, to her knowledge, the only person taking APL in respect of the child and that she consents to the employer processing the information contained in the declaration.

If requested, the employee taking APL must provide their employer with a copy of the child’s birth certificate and the name and address of the mother’s employer.

The employer of the employee taking APL must confirm in writing to the employee within 28 days of receipt of the leave notice the APL dates.

The conditions relating to the mother

The conditions which the mother must have satisfied are that she is entitled in respect of the child to: maternity leave, statutory maternity pay or maternity allowance and has returned to work. She must also have signed the mother declaration.

When may leave be taken?

APL may be taken at any time within the period beginning 20 weeks after the child’s date of birth and the child’s first birthday.

The minimum period of APL which may be taken is two weeks and the maximum is 26 weeks. It must be taken in multiples of complete weeks and must be taken as one continuous period.

What is the rate of additional paternity pay?

From 6 April 2010, the standard weekly rate for additional paternity pay which will be payable during the balance of any paid period of maternity which is not taken by the mother is £124.88 or 90 per cent of normal weekly earnings if lower. This means, for example, that if the mother takes 26 weeks of her maternity leave and then returns to her work, the employee taking APL will be entitled to 13 weeks statutory pay (the balance of the 39 weeks SMP that would have been available). Employers can, of course, decide to be more generous.

Employers will also need to consider their enhanced maternity schemes to see if it would be discriminatory not to provide certain aspects of the scheme to those taking APL.

Other relevant provisions

During APL an employee is entitled to the benefit of the same terms and conditions of employment which would apply if he or she was not on leave with the exception of any entitlement to remuneration (that is, wages or salary). Benefits (such as holidays) will therefore continue.

An employee returning from APL is entitled to return to the same job.

Employees are, of course, protected from being subjected to any detriment or from dismissal for a reason related to APL.

Adoption

There are equivalent provisions in respect of an adopted child. The concept is that the spouse, civil partner or partner of the primary adopter may take additional paternity leave when the primary adopter returns to his or her work.

What should employers do?

The new rules relating to APL are already in force and employers should now be putting polices and procedures into place.

Employers are advised:

• to review and amend where necessary current policies on paternity leave to reflect the changes;
• have available standard “leave notices” and “mother’s declarations”;
• to consider, where you have an enhanced maternity scheme, whether any provisions of that enhanced maternity policy should be reflected in an additional paternity policy;
• to consider providing your managers with appropriate training or information on the new right so that they are able to deal with any queries from employees; and
• to inform employees of the details of any changes to the paternity leave policy.

Possible Government Review

The Coalition government has just indicated that it may review the details and timetable for implementation of APL. No further details are available at the moment.