Changes to Paternity Leave Legislation - Q&A

Legislation due to come into effect next year will substantially change the exist- ing paternity leave rules. Introducing Additional Paternity Leave (APL) the new rules will require employers to con- sider requests for up to 26 weeks’ paid leave. Although not due to come into effect until April 2011, Empire HR is advising clients to begin preparing for the change now.

What is the current entitlement to pater- nity leave?

Since 2003 employees have been enti- tled to either one week or two consecu- tive weeks’ paternity leave, and up to two weeks’ Statutory Paternity Pay. This entitlement is subject to several qualifying conditions including being continuously employed for at least 26 weeks ending with the 15th week before the estimated week of childbirth, and
being the father or married to, or the civil partner or partner of the child’s mother. Employers may also offer en- hanced paternity leave schemes.

What will the main changes be?

Paternity leave will comprise of Ordi- nary Paternity Leave (OPL) and Addi- tional Paternity leave (APL). OPL will essentially be the same as the existing scheme. There will, however, also be the option to take APL. Where the mother of the child has returned to work without taking her full entitlement of 52 weeks Maternity Leave. APL must last a minimum of 2 weeks, up to a maximum of 26 weeks. The earliest that APL can be taken is 20 weeks af- ter the birth of the child. There can be a gap between the mother returning to work and APL starting, but the APL must be taken within 1 year of the child’s birth.

How much notice must be given of in- tent to take Additional Paternity Leave?

An eligible employee must give 8 weeks’ written notice. This is the mini- mum amount of notice that a mother must give to an employer of her intent to return to work. An employee must then confirm entitlement within 28 days of the application. Note that this is dif- ferent from the requirement to give no- tice of intent to take OPL (notice must be given by the 15th week before the estimated week of childbirth). This means that an employee can take up to 2 weeks OPL, return to work, and then give notice of intent to take APL.

Will Additional Paternity Leave be paid?

Yes. APL will be paid at the prescribed statutory rate provided that the mother had some entitlement to Maternity Pay, Maternity Allowance or Statutory Adop- tion Pay remaining, and the eligibility criteria are met. This rate is expected to be the same as the standard Statu- tory Maternity Pay rate (currently £124.88 per week).

When will these changes come into effect?

Eligible employees will be entitled to APL where a child is born or placed for adoption after 3rd April 2011. Will those on APL be entitled to KIT days?

Yes. Eligible employees may work for up to 10 days during APL. The rules relating to KIT days will be the same as those currently in place for mothers on Maternity Leave.

What about Parental Leave? Will APL be in addition to this?

Yes. Those wishing to postpone their return to work may decide to apply for
unpaid parental leave. The rules relat- ing to parental leave have not been changed.

Do I have to give those who take APL the same job and pay when they return to work?

In most circumstances, yes. Those who take OML and/or AML are entitled to return to the same job, under the same conditions as if they had not been absent. However, those who combine APL with a period of more than 4 weeks parental leave can be offered a suitable alternative position if it is not reasonably practicable for the employee to return to their previous job.

How can I prepare for these changes?

Having an updated Paternity Policy ready for April 2011 will allow you to be prepared for the changes. Although the changes only apply to those ex- pecting a child after April 2011, employ- ees will be required to give notice of intent to take OPL and potentially APL before then. The policy should include details of entitlement, notice require- ments, and rights upon return to work. You may also like to circulate details of the upcoming changes to employees. It would also be prudent to ensure that those responsible for administration of paternity leave are fully trained and aware of the changes.