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New Paternity Provisions - who is left holding the baby?

09 August 2011 #Employment

"We`re having a baby"!

Until recently, when a male employee would announce he and his partner were going to be parents, the biggest impact on a small business might have been the cost of a round of drinks bought to whet the baby`s head! That`s all changed following the recent introduction of Additional Paternity Leave. Now the impact on small businesses is potentially much greater.

Additional Paternity Leave (APL) allows a father to take up to 26 weeks` leave to care for a child on top of the two weeks` Ordinary Paternity Leave (OPL) rights, which have existed for some time.

Set out below is a summary of the current law on paternity provisions. For simplicity, the focus is on circumstances relating to natural parents. However, there are corresponding provisions for adoptive parents.

Eligibility Requirements

To be eligible for OPL the employee must have at least 26 weeks` continuous service ending with the week immediately preceding the 14th week before the expected week of childbirth ("EWC").

In addition, the employee must have, or expect to have responsibility for the upbringing of the child on account of their relationship as:
  • The child`s natural father, or
  • By being married to or the partner of the child`s mother
The statutory right to take APL will arise where the EWC begins on a date that is on or after the 3rd April 2011. Provided this is the case, an employee who satisfies the eligibility requirements for OPL will also be eligible to take APL subject to the considerations below:
  1. As the two periods of leave are not usually able to be taken consecutively (an exception would be where the mother dies in childbirth), the right to APL further requires that the employee has remained in continuous employment with the same employer and does so until at least the week before APL is due to commence.
  2. The right to APL is not an independent right belonging to the father or partner. In order to be eligible for APL the mother must also return to work having been entitled to statutory maternity pay or maternity allowance.
Entitlement to leave
  1. Taking OPL

    Employees may choose to take either one week`s leave or two consecutive weeks` leave. Leave must normally be taken within 56 days of the child`s birth.

  2. Taking APL

    A qualifying employee is entitled to take up to 26 weeks` APL to care for the child. The leave must be taken in multiples of complete weeks and as one continuous period. A minimum of two weeks` leave must be taken.

    Employees can choose when to take APL, provided the start date is no earlier than 20 weeks after the date of the child`s birth and the end date is no later than 12 months after the actual date of birth. The start date does not necessarily have to coincide with the date that the mother returns to work and could be later.
Notice Requirements

Employees must give notice of their intention to take paternity leave.

For OPL the notice must be given on or before the 15th week before the EWC, or if this is not reasonably practicable, as soon as is reasonably possible. For APL the employee must give at least 8 weeks` written notice of their intention to take APL.

The employer must then write to the employee within 28 days of receipt of the notification to confirm the dates on which their APL will start and end. The employee`s self declaration must also be supported by a written declaration from the child`s mother

Conditions of leave

Any time spent on OPL and APL will count towards the employee`s continuous service of employment. This is relevant when calculating contractual benefits and statutory employment rights, such as redundancy payments, that are based upon length of service.

An employee may also work for up to 10 days during any APL period, which are known as keeping in touch (KIT) days.

Statutory Paternity Pay

Statutory Paternity Pay (SPP) may be claimed for up two weeks during a period of OPL and for up to 26 weeks during APL. Any entitlement to SPP during APL only arises in circumstances where the mother qualified for Statutory Maternity Pay or Maternity Allowance and has returned to work, without exhausting her entitlement.

From 3rd April 2011, SPP is payable at the rate of £128.73 per week, or 90% of the employee`s normal weekly earnings, whichever is lesser. SPP is subject to tax and National Insurance contributions and the rate is reviewed annually

Small businesses will be refunded by the State for SPP payments together with additional money in compensation.


Whilst the Federation of Small Businesses has warned that the new right to Additional Paternity Leave will greatly impact small firms who are already facing excessive administrative burdens - a recent survey by think tank Demos found that just one in ten men would actually take more than two weeks off work. This is primarily because statutory paternity pay covers less than a quarter of their salary. The Demos` report also found that nine in ten employers already offer at least some form of flexible working, with firms approving 80% of staff requests to work different hours.

We would be extremely interested to receive your views on what impact you think APL, and increased flexible working rights would have on your business. If you have any comments, you can email us or send us a blog or tweet. If you need any more detailed advice or guidance on paternity provisions or on family friendly policies in general, please contact us.
Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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