Most people are familiar with the concept, if not the details, of maternity leave and pay, but the rights of some employees to take paternity leave and pay may come as more of a surprise.
Ordinary and statutory paternity leave
Ordinary paternity leave and ordinary statutory paternity pay are available to employees of either sex. They have to be the father of the child, or be married to, or the civil partner, or partner of a woman who has given birth.
Ordinary paternity leave is also available to employees who are adopting a child. In either case, the employee must have, or expect to have, responsibility for the upbringing of the child.
Employees are currently entitled to a period of up to two weeks’ leave – given in addition to annual holiday entitlement – to be taken within 56 days of the birth. The leave must be taken in a block of either one or two weeks. The employee cannot choose to take two separate blocks of one single week.CHK
The employee must have at least 26 weeks’ service by the end of the 15th week before the baby is due. By this point, the employee is required to have notified you of their intention to take the leave and complete a declaration called an SC3. There is no requirement to ask them to provide medical evidence of their partner’s pregnancy.
The current rate of statutory paternity pay is £124.88 per week - employees who normally earn less than this are paid 90% of their usual week’s pay. The rate is reviewed annually and changes normally take place each April. If an employee earns below the Lower Earnings Limit - currently £97 per week - they may be entitled to the leave, but not the pay.
Additional paternity leave
Eligible employees are also entitled to take additional paternity leave and receive additional statutory paternity pay. This entitlement is separate to the entitlement to take the maximum 2 week ordinary paternity leave so eligible employees can take both ordinary and additional paternity leave.
Additional paternity leave allows eligible employees to take a minimum 2 weeks to a maximum 26 weeks’ leave, but this can only start at the earliest 20 weeks after the child has been born/placed for adoption and must be taken in one block. The leave cannot continue past the child’s 1st birthday/1st anniversary of placement.
If employees are eligible for ordinary paternity leave in terms of qualifying service and relationship with the child, then they will be eligible for additional paternity leave, subject to further conditions:
- The mother/co-adopter must have been entitled to one or more of maternity/adoption leave, statutory maternity pay (SMP) or statutory adoption pay (SAP) or maternity allowance (MA).
- The mother/co-adopter must also have returned to work for the father/mother’s partner to take additional paternity leave.
Additional statutory paternity pay (ASPP) will be paid for the duration of the leave, but only if the mother’s/co-adopter’s SMP/SAP period had not been fully exhausted, and will only be paid for the amount of time left in that SMP/SAP period. ASPP will be paid at the rate of SMP.
Employees may agree to work for up to 10 days during the additional paternity leave period. These are called ‘keeping in touch days’ (KIT days) and do not bring the paternity leave to an end.
No statutory payments are lost for working on these days, though additional payment for this work is to be agreed between the employer and employee. For these purposes, any work done on a day, even an hour’s work, is classed as a day’s work.
It is useful to have a discussion with the employee about when they are planning to take their leave and flexibility on both sides may be needed to reach an amicable agreement. Some employees may want to take some holiday as well as, or instead of, ordinary paternity leave. This can frequently be the case where their partner is on maternity leave and the additional temporary loss of earnings presents them with difficulties.
Unlike paternity leave, there is no service requirement for maternity leave; all pregnant employees are entitled take up to 52 weeks maternity leave, made up of 26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave.
The first two weeks of leave are compulsory. If the employee does not have 26 weeks’ continuous service by the end of the 15th week before the week the baby is expected, they will not be entitled to statutory maternity pay. New employees who find themselves in this position may be able, as an alternative, to claim maternity allowance.
The statutory maternity pay period lasts for a maximum of 39 weeks and is generally payable at 90% of the employee’s weekly pay for the first six weeks, followed by the remainder at the standard rate, currently £124.88.
It is important to remember that women on maternity leave have continuity of service and keep all the benefits of their employment – except for their pay – during this period. It is worth checking the employee’s contract of employment to understand what this means in any individual case.
Employees on maternity leave are also entitled to take 10 KIT days. Once again, talking it through with your employee to see if they wish to take holiday either before or after their period of maternity leave or discussing how the holiday will be given can save misunderstandings and inconvenience on both sides.
Returning to work
An employee returning after ordinary maternity/paternity leave or additional paternity leave is generally entitled to return to the same job in which they were employed before the absence. An employee returning after additional maternity leave is entitled to return to the same job, or if that is not reasonably practicable, to another job which is both suitable and appropriate for her in the circumstances.
- Peninsula is a UK-wide employment law and health and safety consultancy, who regularly advise GP practices on these matters. For more information click here.