Category Archives: paternity leave

consultation on modern workplaces – parental rights

Posted on by
Reply

The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011 . One of the topics covered is "Flexible Parental Leave". Consultation closes on 8 August 2011.
In bare outline, the main elements in the “flexible parental leave” part of the proposals are :

Initial leave rights (around the birth/adoption of a child):
  • Maternity leave to be reduced from the current 52 weeks to 18 weeks (the minimum required by new EU law);
  • "Flexible parental leave" would be available for the next 34 weeks (i.e. after the 18 weeks’ maternity leave period), shared between the parents as they see fit;
  • If the parents decide not to share the 34 weeks so that one of them takes it in full, then a further period of "reserved leave" (4 weeks is suggested) will be available to the other (this is social engineering – the government specifically says at para. 48 that this is because it wants to change the "widespread cultural expectation that it should always be the mother who takes time out from work to care for children");
  • Ordinary paternity leave to remain at 2 weeks;
  • Fathers also to have the right to time off before the birth to attend a limited number (two is suggested) of pre-natal appointments.

Employers would be able to insist that leave is taken in a continuous period (the consultation paper says that "the process of agreeing when leave is taken is left up to the parties … Where they can not agree, the default position would be for parents to take leave in one continuous block"). It also suggests that there "should be no restriction on parents choosing to take leave concurrently. Allowing only one parent to be out of the workplace at any one time would place unnecessary restraints on how leave may be taken, and interfere with the ability of parent and employer to agree how leave is taken".

Subsequent leave rights

Currently parents who have been employed by their current employer for a year or more are entitled to 13 weeks’ parental leave for each child aged between one and five, Not more than four weeks can be taken in any year and the leave must be in blocks of a full week.

The essence of the proposals is to increase the amount of parental leave from 13 to 18 weeks (this is required by new EU law), to remove the requirement of a year’s employment and possibly to increase the age of the child from 5 to 8, 12, 16 or even 18.

Pay

Currently employed mothers who qualify get statutory maternity pay (SMP) for 39 weeks. They receive 90 per cent of their average earnings, subject, after the first six weeks, to a cap of (currently) £128.73 per week.

Under the new proposals the 18 weeks’ maternity leave and the first 21 weeks of the 34 weeks of flexible parental leave would be paid at 90 percent of average earnings subject to the cap noted above, currently £128.73 per week. There is no mention in the consultation paper of special provision during the first six weeks, as at present. The four weeks’ "reserved leave" noted above would be leave with pay as would the two weeks ordinary paternity leave (as at present).

Other leave (including the father’s right to time off for pre-natal appointments and the right to parental leave after the child’s first birthday) would generally be unpaid.

Finally

The suggestions in the consultation paper are not set in stone. They may well be changed, although no doubt the general thrust of encouraging parents to share in the bringing up of small children will be retained. Concerns have been raised that in practice there will be enormous administrative costs involved, not least in policing, if a new system along the lines suggested in the consultation paper is to be adopted and not abused. Concerns have been expressed by, amongst others, the British Chambers of Commerce (BCC) and the Federation of Small Businesses (FSB).

Additional paternity leave

Posted on by
Reply

It is now well known that where parents of a child born on or after 3 April 2011 are both working, then once the mother goes back to work the father (provided he has “clocked up” at least 26 weeks’ continuous employment with the employer) can then take up to 26 weeks of “additional paternity leave”.

What may be less well known, or at least not generally understood, is that the right to additional paternity leave is NOT the same, and does not have the same effect as, a right to share between them as they choose the normal 52 weeks maternity leave available to mothers.

In law the father’s right to additional paternity leave is separate from the mother’s right to maternity leave. In practice, if the father decides to take it, it may often have the same practical result as sharing 52 weeks leave. But it can mean that the total taken by the mother and father can exceed 52 weeks.

An example will make this clear. If the mother starts her maternity leave on the earliest possible date (11 weeks before her expected week of childbirth) and goes back to work 20 weeks after the child is born she will have had 31 weeks of maternity leave assuming the birth happened when expected. The father can then take 26 weeks additional paternity leave (this will expire before the child’s first birthday and thus fulfil a legal condition to that effect). The total of the maternity leave and additional paternity leave will then add up to 57 weeks – and on top of that the father will have been able to take the normal two weeks’ paternity leave available under previous law, meaning that in total, between them the mother and father will have had 59 weeks leave. They will of course also be entitled to their normal annual holiday rights.

It is also worth noting that additional paternity leave is only available to husbands/partners of working mothers (self-employed counts – technically the requirement is that the mother must be entitled to one or more of the following: (i) maternity leave; (ii) statutory maternity pay (”SMP”); or (iii) maternity allowance). The new right is available to adoptive parents and to partners and civil partners – who can be same sex partners leading to the interesting result that it is possible for a woman to claim paternity leave (as Humpty Dumpty said to Alice: “When I use a word, it means just what I choose it to mean – neither more nor less”).

Additional paternity leave

Posted on by
2

Employed new fathers who have completed 26 weeks continuous employment with their employer already have the right to two weeks’ paternity leave with statutory paternity pay.

New, additional, paternity leave rights come into force in relation to children whose expected week of birth (or matching for adoption) begins on or after 3 April 2011 (the detail is in the Additional Statutory Paternity Pay (Weekly Rates) Regulations 2010). The general idea is that where parents of a child are both working, then once the mother goes back to work (which for this purpose cannot be before the baby is 20 weeks old), the father can then take up to 26 weeks of “additional paternity leave”.

The additional paternity leave is in addition to the two weeks which the father is entitled to take under existing law during the 8 weeks after the baby is born. It must be completed before the child’s first birthday and must be one continuous period. The right is only available to the husbands/partners of working mothers (self-employed counts – technically the requirement is that the mother must be entitled to one or more of the following: (i) maternity leave; (ii) statutory maternity pay; or (iii) maternity allowance). The right is only available if – and after – the mother returns to work.

An important point is that the right to additional paternity leave is NOT a right to share the 52 weeks’ maternity leave available to mothers – in practice it may have that result but in law the father’s right to additional paternity leave is separate from the mother’s right to maternity leave. Therefore the total taken by both mother and father can exceed 52 weeks. Thus if the mother starts maternity leave on the earliest possible date (11 weeks before her expected week of childbirth) and goes back to work 20 weeks after the child is born she will have had 31 weeks of maternity leave (assuming the birth happened when expected). The father can then take 26 weeks additional paternity leave – this will expire before the child’s first birthday and thus fulfil that condition. The total of the maternity leave and additional paternity leave will then add up to 57 weeks and on top of that the father will have been able to take the normal two weeks’ paternity leave available under previous law. This means that in total in this example, between them the mother and father will have had 59 weeks’ leave. They will of course also have their normal holiday entitlement.

There is a limited right for fathers to be paid during additional paternity leave. The father can in effect claim any unpaid statutory maternity pay which the mother has forfeited by returning to work. As statutory maternity pay is limited in both amount (£128.73 as from 11 April 2011, or 90% of earnings if less) and duration (39 weeks) it follows that from a financial point of view it will only make sense for a man to take his full entitlement to additional paternity leave if the mother is going back to a well paid job.

The new right is available to the husband or partner of the mother and is available to adoptive parents. There are provisions to avoid fraud but, interestingly, the partners can be same sex partners leading to the result that a woman can claim paternity leave – as Humpty Dumpty said to Alice: ‘When I use a word, it means just what I choose it to mean – neither more nor less’.

Finally, it is worth noting that this new right to additional paternity leave may be subsumed in due course into new overall “family-friendly” rules which are likely to follow from a Government consultation which commenced this month.