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While some employers offer more generous contractual benefits, the only legal requirement is for the statutory minimum entitlement to paternity leave and statutory paternity pay to be offered to employees.

Statutory paternity leave and pay is also available to those who adopt and similar rights and obligations to those set out below apply in adoption cases.

Statutory paternity leave: ordinary paternity leave
Since 6 April 2003, employees who satisfy various eligibility requirements have been entitled to take either one week or two consecutive weeks’ Ordinary Paternity Leave (OPL).

The purpose of OPL is to enable an employee to care for a child, or to support the child’s mother.

Such leave must be taken within 56 days of a child’s birth.

The eligibility criteria are that:

  1. the employee must have sufficient qualifying service with their employer (at least 26 weeks ending with the week immediately prior to the 14th week before the expected week of childbirth);
  2. the employee must be either: the child’s father or the spouse, civil partner or partner (including same sex) of the child’s mother;
  3. the employee has or expects to have responsibility for the child’s upbringing.
  4. The employee’s contract remains in force during OPL so that contractual terms, other than those relating to wages or salary, continue. Both continuity of service and holiday entitlement continue to accrue during OPL.

The qualifying week is:

  • employment at the end of the 15th week before the expected week of childbirth, or
  • the week they were matched with a child by a UK adoption agency (UK adoptions), or
  • the time they get official notification from a UK authority that they can adopt from abroad (overseas adoptions)

If an employee doesn’t qualify, write to them within 28 days of their request and include form ASPP1.

Since 3 April 2011, any employee entitled to OPL has also, potentially, been entitled to Additional Paternity Leave (APL).

Additional Paternity Leave (APL)

Employees are eligible if:

  • they’ve worked for you continuously for at least 26 weeks by the ‘qualifying week’ (see above)
  • they’re employed the week (Saturday to Sunday) before their leave and or pay starts
  • they are on the payroll and earn at least £109 a week (gross) in an 8 week period
  • their partner has at least 2 weeks left of their maternity or adoption pay (APP only)
  • their partner signs one of the offical forms (available here) below confirming their maternity or adoption leave or pay is ending
  • they give you the correct notice using the forms below

Importantly, even if the above requirements are satisfied APL is only available to a father where the mother has returned to work after maternity leave.

An employee’s APL may last between two weeks and 26 weeks. APL must be taken within a set period that starts 20 weeks after, and ends 12 months after, the child’s birth.

Statutory Paternity Pay
The rate of statutory pay during both OPL and APL is the lesser of:

  • the prescribed rate which is set by the Government each year, currently £136.78 a week; and
  • 90% of the employee’s normal weekly earnings.

An employee is entitled to be paid for between 2 and 26 weeks APL only where the mother has returned to work without exhausting their maternity pay. The father will be entitled to receive pay during the remaining balance of that period.

The future

With regard to shared parental leave, ther new Bill (feb 2013) itself does not set out the detail employers are keen to see; instead it contains powers for government ministers to draw up detailed regulations in due course.  That said, some common ground is expected (see below).

A new system of optional shared parental leave enabling both parents to be away from work at the same time is expected to come into force in 2015. From that time APL will be abolished but OPL will still be available for those who choose not to take shared parental leave.

Employers who offer enhanced maternity leave benefits may wish to take the opportunity to review these and how they will be applied in the “shared” environment from 2015.

With regard to shared parental leave, ther new Bill (feb 2013) itself does not set out the detail employers are keen to see; instead it contains powers for government ministers to draw up detailed regulations in due course.

Unlike the current arrangements for additional paternity leave, the mother will not have to return to work in order for the remaining leave to become flexible parental leave and nor will her partner have to wait until the baby is 20 weeks old before taking leave. The mother will have to notify her employer of the date on which she plans to end maternity leave, and the balance will then become available for her and her partner to take as ‘shared parental leave’ (provided due notice has been given to her partner’s employer).
The intention is for flexible parental leave to be taken in a minimum of one-week blocks and parents can decide between them how much each will take. If either of the parents does not intend to take their allocation in a single block, then they will need to agree the leave pattern with their individual employer. If agreement can’t be reached, the leave will default to a single block beginning on a date specified by the employee.

Paternity leave will remain at two weeks but will be reviewed in 2018.

The new Bill will bring adoption leave into line with maternity leave by removing the qualifying requirement to have six months’ service and increasing adoption pay in the first six weeks so that it is calculated in the same way as maternity pay.

Where eligible, adopters will also be able to take shared parental leave.

The Bill also contains new rights for adopters to take paid time off, pre-placement, for adoption meetings. Furthermore, to tie in with changes to the adoption process, regulations are expected to follow that will enable prospective adopters to begin adoption leave when a child is placed with them as foster parents before the formal adoption placement takes place.

Time off for ante-natal appointments
Fathers and partners of pregnant women will be given a right to take unpaid leave to attend two antenatal appointments.

Surrogate parents
Surrogate parents who meet the criteria to apply for a Parental Order will be eligible for statutory adoption pay and leave and shared parental leave, providing they meet the qualifying conditions.

Flexible working
The changes to the right to request flexible working are contained in the Bill. The intention is to introduce the flexible working changes in 2014 at the earliest.

All workers with qualifying service will have the right to request flexible working, but an
employer retains the right to refuse on the existing statutory grounds. Currently, there
is a right to request a change in hours and place of work if the request relates to a child