How the new paternity leave laws affect you

What do the recent changes to the paternity laws mean and how do they affect you and your maternity and paternity leave? Louise Wilkinson, lawyer from Which? Legal Service, explains

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New paternity leave rules now exist, meaning you and your partner will be legally entitled to share time off work during your baby’s first year. The laws apply to babies expected to be born on or after 3 April 2011, and allow dads to take up to 26 weeks paternity leave.

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The maternity and paternity leave laws until now

Paternity leave was introduced to encourage more involvement by dads in the care of children. It’s available not only to dads but also to adopters, and husbands, civil partners and partners (including same sex) of mums or adopters.  To be eligible he or she must have, or expect to have, main responsibility (in addition to that of the mum) for the upbringing of the child.

Under the existing rules (subject to notification and qualification requirements) mums are entitled to up to a total of 52 weeks maternity leave. This sees mums get:

  1. The first six weeks on 90% pay
  2. The following 33 weeks on the lower rate of statutory maternity pay, which is the lesser of £124.88 (£128.73 from 11 April 2011) or 90% of average weekly earnings.

Men are allowed up to two weeks paternity leave, at the same rate as the lower rate of statutory maternity pay.

What the new additional paternity leave rules are

Under the new “additional” paternity rules, partners are now able to share up to 26 weeks of the mum’s leave, including any remaining untaken statutory pay, under the following conditions:

  • A minimum of two weeks and a maximum of 26 weeks may be taken between 20 weeks and 12 months after the birth
  • It can only be taken once the mum or adopter has returned to work
  • In order to claim this right, the mum must have been entitled to maternity leave, statutory maternity pay, maternity allowance or statutory adoption pay

This additional paternity leave therefore gives a mum’s partner the opportunity to use all or part of her final 26 weeks maternity or adoption leave. It’s partly aimed at equalising the rights of men and women.

However, there will be situations where partners won’t be able to claim additional paternity leave, even though they are employees and otherwise eligible, because either the mum didn’t work or she had insufficient record of NI contributions. Also, if the mum changes her mind and decides not to return to work at all, the partner loses the right to take additional paternity leave.

Paternity leave notice periods and pay entitlements

The notice requirements and pay entitlements differ between the two different types of leave. If you’re a dad-to-be, here’s the vital stuff you need to follow…

Ordinary paternity leave

For “ordinary” paternity leave (either one week or two consecutive weeks that can be taken within 56 days of the child’s birth or placement for adoption), the conditions are:

  • Notice must be given to your employer no less than 15 weeks before the expected week of birth, stating the expected date of birth, the length of leave to be taken and the date it is to start.
  • If your employer doesn’t agree, it is able to give 28 days notice of a change to the date it will start or of the amount of leave to be taken.
  • If your child is born later than the date given for the leave, the leave must be postponed to start no earlier than the date the child was born.
  • Statutory paternity pay is the same as the lower rate of statutory maternity pay.

Additional paternity leave

For “additional” paternity leave, the conditions are:

  • At least eight weeks written notice must be given to your employer of an intention to take the leave, stating the expected date of birth, the actual date of birth, the date it is to start and end.
  • The notice must be accompanied by an employee declaration (SC7 for births, SC8 for UK adoptions and SC9 for overseas adoption) and a mum or adopter declaration setting out certain specified required information.
  • Your employer can also request a copy of your child’s birth certificate and the name and address of the mum’s employer or her business address, within 28 days of receiving the leave notice.
  • You’re entitled to any statutory maternity pay, maternity allowance or statutory adoption pay remaining that the mum/adopter would have been entitled to, subject to satisfying financial conditions.

During either type of paternity leave, you’re entitled to all your terms and conditions of employment – so, for example, holiday entitlement will continue to build up – and the right not to be subjected to any detriment, or be dismissed, for having taken paternity leave.  You’re also entitled to return to the job in which you were employed and the conditions that would have applied had paternity leave not been taken.

More parental leave changes expected in 2015

The Government carried out an assessment that predicted between 4% and 8% of eligible dads will initially take up “additional” paternity leave, with take up gradually increasing with time.

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The Coalition Government has stated that additional paternity leave is an interim measure. Long term it proposes to introduce a more flexible system of shared parental leave to be introduced in 2015, but more detail is awaited. It is also keen to take into account the needs of employers and ensure that any new system is simple to administer. Full consultation is anticipated but has not yet been launched.

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