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What employers need to know about additional paternity leave

This guide was last updated in August 2011.

Since 2003, men with parental responsibility for a child have had the right to take two weeks paid paternity leave. From 2011, they have also been entitled to take up to 26 weeks additional paternity leave (APL) and to receive additional statutory paternity pay (ASPP) for some of that period.

Additional paternity leave (APL) allows a father to take time off from work to care for a child before the child's first birthday. Fathers have the right to take between two and 26 weeks APL to care for a child under one, if the mother has returned to work before taking her full 52 weeks' maternity leave (whether she is employed or self-employed). This is in addition to the two weeks ordinary paternity leave (OPL) that a father can take around the time of the birth.

Men taking APL will be entitled to receive additional statutory paternity pay (ASPP) as long as the mother has not exhausted her right to statutory maternity pay (SMP) or maternity allowance (MA) when she returns to work.

Partners of women who decide not to return to work will not benefit from the new rights.

For simplicity, this guide refers to birth fathers only. However, the new right also applies to adoptions although with some small differences.

Who qualifies?

APL is available to:

  • the father of a child due on or after 3 April 2011; or
  • the husband, partner or civil partner of the baby's mother who is not the baby's father. 'Partner' means the person who lives with the mother and the baby in an enduring family relationship, but who is not a relative of the mother. For simplicity, we will refer to this person as the father throughout this guide.

He also needs to:

  • have the main responsibility for the upbringing of the child (apart from the mother), and intend to care for the child during APL;
  • be continuously employed by the same employer for at least 26 weeks ending with the 15th week before the week the baby is due (the expected week of childbirth (EWC)), and remain in that employment until the start of APL;
  • show that the mother is entitled to maternity leave, SMP or MA and has returned to work before exhausting her entitlement to statutory maternity leave; and
  • comply with the notification provisions below.

How long is APL?

Fathers can choose to take between two and 26 weeks' APL, which must be taken in multiples of complete weeks and as one continuous period.

Contrary to popular belief, APL does not work by transferring leave entitlement between parents. APL is a separate right of fathers. This can result in a couple having a combined maternity leave and APL period that is longer than if the mother alone had taken her full 52 week maternity leave entitlement.

When does APL start?

APL can be started by the father at any point after the baby is 20 weeks old, and must be completed by the baby's first birthday. Gaps between the end of maternity leave and the beginning of APL will be permitted, although in practice the father's leave is likely to be taken immediately after the mother returns to work.

Example

  • mother starts maternity leave 11 weeks before EWC (the earliest time she can);
  • baby arrives on time in the EWC;
  • mother takes 20 weeks maternity leave and returns to work at the end of 31 weeks of maternity leave (so the baby is 20 weeks old);
  • father then starts APL immediately and takes 26 weeks' APL which finishes when the baby is 46 weeks old

The total leave the parents take together is 57 weeks: 31 weeks' maternity leave plus 26 weeks' APL. This is more than the mother's entitlement to 52 weeks' statutory maternity leave.

Notice and evidential requirement

In order to be eligible for APL, the father must self certify by providing a signed notification to his employer. HMRC has produced a special notification form, but employers are free to produce their own.
At least eight weeks before the start of APL, the father must provide his employer with:

  • the EWC and child's actual date of birth;
  • the proposed start and end dates of APL;
  • an employee declaration that the father satisfies the eligibility requirements for APL in terms of his relationship to the child, the purpose of the leave and his responsibility for the child's upbringing;
  • a signed declaration from the child's mother setting out her name, address and national insurance number; her intended return to work from maternity leave date; a declaration that the information supplied by the father is correct and that he is the only person exercising the right to APL in respect of the child; and her consent to the employer processing this information.

The employer must confirm the employee's entitlement to APL within 28 days. There are also provisions allowing an employee to cancel his leave or change dates, and detailing the employer's obligations and rights in such circumstances.

There is no obligation on the father's employer to check the information with the mother's employer before granting APL to the father. However, if it chooses, the employer can request from the father a copy of the child's birth certificate and the name and address of the mother's employer, and the father must respond within 28 days. There is no penalty if the father does not provide this information, so employers may have to rely on internal disciplinary procedures in such cases.

Also, there is no obligation on the mother's employer to provide any information to the father's employer, so it may not be easy for employers to check whether the mother has in fact returned to work.

Rights during APL

Mirroring the provisions of maternity leave, all terms and conditions of the father's employment contract will continue during APL with the exception of remuneration (wages or salary). Both statutory and contractual holiday will continue to accrue. A father will be entitled to work for 10 "keeping in touch" (KIT) days without APL or ASPP coming to an end. Employers will also be entitled to make reasonable contact with fathers during APL, for example to update them on workplace changes.

In most cases, a father has the right to return to the same job and on no less favourable terms and conditions, just like a mother returning from ordinary maternity leave (OML). He is also protected from detriment or dismissal because he took APL. As with OML and additional maternity leave (AML), a father whose job is made redundant is entitled to be offered any suitable alternative vacancy.

Additional statutory paternity pay

Who qualifies for ASPP? A father is entitled to ASPP where the mother has not exhausted her entitlement to 39 weeks SMP/MA, but only if she has at least two weeks of her entitlement left. This is in addition to any pay received during ordinary paternity leave (OPL), known as ordinary statutory paternity pay (OSPP).

In addition, the father must satisfy the eligibility requirements for APL and have average weekly earnings at or above the Lower Earnings Limit over the eight week relevant period - that is, the period of eight weeks ending with the EWC.

How much is ASPP? ASPP is paid at the lesser of the standard SMP rate (currently £128.73 a week) or 90% of the father's average earnings. No extra ASPP is payable for multiple births. ASPP is only payable during the period when the mother would have been entitled to SMP or MA. Because the earliest date that APL and ASPP can start is 20 weeks after the child is born, this means that ASPP is only payable for a maximum of 19 weeks.

All APL taken after the end of the SMP/MA period will be unpaid, unless the employer decides to pay enhanced paternity pay.

Example

  • mother had eight weeks of SMP remaining when she returned to work after 31 weeks' maternity leave, so the father is only entitled to eight weeks' ASPP;
  • father can still take 26 weeks' APL, therefore 18 weeks of his APL will be unpaid unless his employer agrees to pay enhanced additional paternity pay (see below).

Fraudulent claims and HMRC penalties As with all other statutory payments, ASPP will be subject to random HMRC compliance checks. A sample of employers will undergo these checks every year in order to identify fraud. While most employees are honest, fraudulent claims from unscrupulous employees could arise as a consequence of the self-certification regime.

Employers failing or refusing to operate the APL/ASPP scheme correctly can incur civil penalties. Penalties may also be imposed on employees who fraudulently or negligently give incorrect information, or who make a false statement or declaration in order to obtain APL/ASPP. In these circumstances, the employer will not be penalised if it has paid ASPP in good faith.

Details of the penalties are set out in the HMRC's E19 Employer Helpbook for Ordinary and Statutory Paternity Pay (755 KB, 64-page PDF).

Records HMRC has various requirements for employers to keep records of employees who receive ASPP, and they must be kept for at least three years after the end of the tax year to which they relate. See the HMRC's ASPP Record Sheet.

Recovery of ASPP Almost all ASPP paid by employers to fathers is recoverable by the employer. The amount which can be claimed depends on the total gross Class 1 national insurance contributions (NICs) paid by the employer and employee combined. The employer is entitled to 104.5% of the ASPP back if its annual liability for Class 1 NICs is £45,000 or less; or 92% back if its liability is over £45,000.

Enhanced additional paternity pay

Employers who pay enhanced maternity pay to women on AML will need to consider whether to pay enhanced paternity pay to men on APL. The Government's view is that this is not necessary, and that a failure to do so will not give the man grounds for an equal pay claim. This is because the law allows men and women to be treated differently where the purpose is to afford women special treatment to protect their biological condition following pregnancy or childbirth, or to protect the special relationship between a mother and her child.

However, it is arguable that enhanced pay to a woman on AML does not protect the special relationship between mother and child and is more a matter of allowing her to care for her child, which applies equally to a man on APL. Treating men and women differently during AML and APL could therefore give rise to discrimination and a very recent judgement by the European Court of Justice supports such an argument, although it had different facts.

In view of the uncertainty of the state of the law on this issue, employers may decide not to enhance paternity pay and to take a 'wait and see' approach. However, they will need to consider the employee relations ramifications of such a decision.

Likely take-up

The take-up of APL by fathers is expected to be low, although traditionally male-dominated industries such as construction, energy and transport will be more affected by the new right than others. The Government estimates that while 350,000 working mothers give birth every year, only four to eight per cent (10,000-20,000) of eligible fathers per year will take APL. This estimate, based on a 2005 survey conducted by the UK Department for Business, Innovation and Skills and evidence from Scandinavian countries which already have the right, is deliberately conservative. However, the figures are backed up by research undertaken in 2009 by the Equality and Human Rights Commission that many fathers fear that flexible working could harm their career and that nearly half of eligible fathers did not take OPL because they could not afford to.

What employers need to do now

Parents with babies due on or after 3 April 2011 will already be making plans and asking questions of HR. Employers are advised to:

  • Update maternity and/or paternity policies to reflect the new law and communicate the changes to employees;
  • Decide whether to produce their own APL application forms to ensure that fathers supply all the relevant information to claim APL/ASPP, or whether to use the HMRC forms and checklists;
  • Ensure that managers are trained about employees' rights to take APL and to receive ASPP so that they do not inadvertently discriminate against employees eligible for APL;
  • Update redundancy policies to make it clear that fathers have priority for suitable alternative vacancies if made redundant while on APL and train managers accordingly; and
  • Decide whether to offer fathers on APL enhanced paternity pay to mirror any enhanced maternity pay offered to mothers on AML, and/or whether to restructure maternity and paternity packages as a whole.

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