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.