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A guide to paternity leave changes.


THE ADDITIONAL Paternity Leave Regulations 2010 came into force this month (April 3). The changes are quite radical and could catch many businesses out writes Matthew.

Before the changes, eligible employees could take up to two weeks leave as ordinary paternity leave (OPL). Under this month's new regulations, employees will be able to take additional paternity leave (APL) of up to 26 weeks, and eligible employees can take both OPL and then APL.

OPL is two weeks leave or two separate weeks, and can be taken by the biological father, where he, apart from the mother, expects to have responsibility for the upbringing of the child. An employee who is the partner of the mother, including civil partners, also has this right.

Not everyone can benefit. To qualify the employee needs to have been continuously employed for at least 26 weeks by the time of the 14th week before the expected week of childbirth.

The leave is then taken between the birth date and 56 days afterwards and it can only be taken if it is for the purpose of caring for the child or supporting the mother. There are similar provisions for parents adopting a child.

To claim OPL the employee must give their employer, in writing, which can be by email, the expected week of child birth; the length of OPL they intend to take eg, one or two weeks; and the date they want to take OPL, between the birth date and 56 days afterwards. These details must be given by the 15th week before the expected week of childbirth.

And once the child is born the employee should give the employer written notification of the date of birth.

Once the employee has served the earlier notices he can change the dates to take OPL but needs to give his employer 28 days notice.

What do I have to pay an employee on OPL?

During OPL the employee is not entitled to be paid, unless the contract of employment provides otherwise. However, the employee is entitled to continue to receive all his other contractual benefits. The employee is entitled to be paid Statutory Paternity Pay (SPP) which from this month, will be 128.73 [pounds sterling] per week or 90% of weekly earnings if lower.

Who is eligible for APL?

As with OPL, the employee needs to be continuously employed for 26 weeks up to the 14th week before the expected week of birth, but the employee must also remain continuously employed until the week before the start of their APL. In addition, for the employee to qualify for APL the child's mother must be entitled to maternity leave, or statutory maternity pay or maternity allowance and have returned to her work.

The minimum period of leave is two weeks and the maximum is 26 weeks.

APL can be taken between from 20 weeks after the child's date of birth, or placement for adoption, until 12 months after the date of birth or placement, providing the mother has returned to work before the APL starts.

What notice does the employee need to give?

The employee must provide their employer a written 'leave notice' which includes the child's expected week of childbirth, the child's date of birth and the dates the employee wants to take as APL.

Further, the employee must provide a signed "employee declaration" and a written "mother declaration".

The regulations are quite complex but essentially, as with maternity leave, the employee should not be put at a disadvantage by taking APL and is entitled to return to their old job.

What paternity pay are they entitled to receive?

Employees on APL are entitled to receive Additional Statutory Paternity Pay (ASPP), providing they comply with the eligibility and notification criteria and a low earnings limit.

From April 11 ASPP is u128.73 per week, or, if less, 90% of normal weekly earnings.

The employer pays the ASPP but can reclaim from HMRC 92% of it, as with Statutory Maternity Pay Small employers may also be able to reclaim 100% of ASPP or SMP and an additional compensatory amount if their total class 1 NIC liability is below u45,000 per year.

Additional Paternity Leave will be disruptive to the business. Is there anything I can do?

Sadly there is very little you can do and you need to be careful how you deal with employees applying for or taking APL, because if a dismissal is connected with the employee taking or seeking OPL or APL it will be automatically unfair. Further, to bring an employment tribunal claim an employee does not have to be employed for any qualifying period. If not dismissed the employee may still bring a tribunal claim to claim compensation if they can show they have suffered a detriment, such as loss of pay or benefits, demotion, missing out on promotion or being unfairly disciplined.

* Matthew Welch is a solicitor at Bath Law.
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Title Annotation:ADVICE
Author:Welch, Matthew
Publication:Optometry Today
Geographic Code:4EUUK
Date:Apr 22, 2011
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