Paternity rights

There are several different types of paternity rights that may be available to new fathers or to those who are the partner of a new mother:

1. Statutory paternity leave

How do you qualify? In order to quality for statutory paternity leave, on the last day of the 15th week before the week in which the baby is expected, the paternity applicantmust have been employed in the same position for 26 continuous weeks. In most cases, someone who has been in the same job since his wife or partner fell pregnant will qualify for statutory paternity leave. Fathers of adopted children are also entitled to statutory paternity leave and will need to have been in the same position for 26 continuous weeks on the last day of the week in which notification is received of a match with a child for adoption. Notice must be given to an employer where a personwants to receive statutory paternity leave – this should be given on or before the 15thweek before the week of the due date.

Who will qualify? Both full time and part time employees are eligible for statutory paternity leave. Those who are married to a new mother, or are the partner (i.e.someone who is not a relative of the mother or adopter, but lives with them in an enduring family relationship) of a new mother, and where the man is like to have responsibility for bringing the child up, will be eligible. A partner may be someone of the same or opposite sex.

What is the entitlement? It is usually one or two weeks and should be taken within 56 days of the child’s birth or the placement of an adopted child. The weeks can be taken separately or together, and can be taken at any time within the 56 days, as long as 28 days notice is given to the employer of the date, and of any changes to the date.

Is it paid? No, not usually. However, anyone earning less than the Lower Earnings Limit for the purposes of National Insurance will be able to receive paid statutory paternity pay. This payment will be taxed and national insurance applied in the same way as regular earnings. Paid statutory paternity pay is £128.73, or 90% of average weekly earnings if this is less.

Those on paternity leave are still entitled to all the usual benefits of their jobs and have a right to go back to work at the end of the leave period. For example, an employer that contributes to an employee’s pension scheme will continue to do so during paternity leave. If the employee is also required to contribute, the payment will be calculated on the basis of the pay received whilst on paternity leave. If there is a shortfall, the employer is only required to make this up where the scheme is a salary related scheme.

Is adoption different? No, not really. Adoptive parents have the right to both adoption leave and paternity leave and one parent can take each of these, it does not matter which one. Adoption leave is up to one year, whilst adoption paternity leave is the same time frame as paternity leave where a child is born.

2. Contractual paternity leave

Most employment contracts will now deal with the issue of paternity leave, whether this is stating an entitlement to statutory paternity leave, or offering an enhanced paternity package.

An employee taking paternity leave within contractual or statutory limits should never be a reason for dismissal as this may result in a discrimination or unfair dismissal claim against an employer.

3. Additional paternity leave

In recognition of the new structure of many families, where the father is no longer the only breadwinner, since April 2011 there are now additional paternity leave options.These allow a mother to transfer up to 26 weeks of her maternity rights to the child’s father, as long as the transfer is made before the child is one year old. It does not matter if mother and father don’t work for the same employer.

In order to make use of additional paternity leave, the mother must have returned to work without using up all her statutory maternity or adoption leave; the employer should be given at least eight weeks notice by someone who wants to take additional paternity leave; and the leave should be verified by the employer. This kind of leave cannot be taken before the child is 20 weeks old and must be taken in blocks of aminimum of two weeks. Anyone who is receiving statutory paternity pay will be entitled to additional statutory paternity pay at the same rate during this period.