News & Views

Additional paternity leave and pay

BY Donald MacKinnon
Employment law
BG Purple

New rules on Additional Paternity Leave (APL) are being introduced to give families greater choice about their childcare arrangements. They also reflect the growing number of fathers who want greater opportunities to care for their young children.

The new rules apply to men with parental responsibilities and adopters.

To keep this article simple the approach we have taken is to deal with fathers and men with parental responsibilities folllowing births. Readers should note that the rules on adoption are very similar to the birth provisions.

Put simply, the new rules allow for the mother to return to work before taking her full entitlement of 52 weeks maternity leave, with the balance being transferred to the father, provided they meet the eligibility rules.

Fathers are allowed to take between 2 - 26 weeks’ leave which must be taken in one block of complete weeks. They are also entitled to the remainder of the mother’s unused SMP/MA as long as she has at least 2 weeks of SMP/MA left when she returns to work. APL cannot normally be taken before the child is 20 weeks old and must end before the child’s first birthday.

The new rights are in addition to Ordinary Paternity Leave (which is what the two week period that fathers are entitled to around the birth of their child is now called) and Ordinary Paternity Pay (the new name for the pay during that period).

During APL fathers have many of the same rights that a mother on maternity leave has, including, the right for to work for up to ten days without their period of leave coming to an end.

These include Keeping in touch (KIT) days, the right not be subjected to detriment or dismissal because of their decision to take APL, the right to be offered suitable alternative work in a redundancy situation, the right to all the terms and conditions that would have applied to them had they been at work, apart from pay, and the right to return to the same role.

To be eligible for APL the man must be the father, husband, partner, or civil partner of a child due on or after 3 April 2011.  The man must also have been employed by his employer for 26 weeks ending with the 15th week before the expected week of the birth (EWC) and remain employed until the leave starts. He will also have to show that the mother is entitled to maternity leave and that she has finished her leave before the 52 week limit. The employee must comply with the notification requirements.

The notification requirements are complex, and we suggest that you contact LAW for detailed guidance on these. They are also set out in guidance in the dedicated client area of our new website. To access this you must be a LAW client with an active website registration.

A father will also be entitled to additional statutory paternity pay (ASPP) if the mother has returned to work without using up her SMP or MA. The mother must have at least two weeks of SMP or MA remaining on her return to work for the father to be entitled to the balance of the pay. ASPP is paid at the same rates as SMP and for the same period. Because fathers cannot normally take APL during the first 20 weeks after the child’s birth the maximum amount of ASPP that can normally be transferred over to the father will be 19 weeks pay

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