Q&A - Maternity and paternity sharing provisions

Women are entitled to 52 weeks' maternity leave and to statutory pay for 39 weeks. By contrast, fathers are only entitled to a maximum of two weeks'…

Women are entitled to up to 52 weeks' maternity leave and to statutory maternity pay for 39 weeks. By contrast, fathers are only entitled to a maximum of two weeks' paid paternity leave. As part of the Government's commitment to giving choice and flexibility to parents, the Additional Paternity Leave (APL) Regulations 2010 were introduced for parents of babies due on or after 3 April 2011, allowing the father to take up to 26 weeks leave and statutory pay, if the mother returns to work early, typically where the mother earns more than the father.

What is the extent of APL Regulations 2010?

APL must be taken in one period, of two weeks to 26 weeks. The period of leave begins 20 weeks after the date of the child's birth and ends 12 months after that date.

Is an employee entitled to Additional Statutory Paternity Pay (ASPP)?

The father will be eligible for ASPP if the mother had been entitled to statutory maternity pay, but returned to work with at least two weeks' of their pay period remaining. The amount available will depend on the number of unused weeks of statutory maternity pay. The statutory rate of pay is £128.73 a week or 90% of normal weekly earnings if lower.

Does APL only apply to biological parents?

No. APL also applies to the spouse or civil partner of the child's mother or in the case of adoption, must be the spouse/partner of the person who having been matched for adoption, has elected to take adoption leave.

Are there other eligibility criteria?

Yes. The person will be an eligible employee if:

  • they have at least 26 months continuous employment, on the 15th week before the expected birth/adoption placement
  • their spouse or partner has returned to work from their statutory maternity or adoption leave
  • they have, or expect to have, the main responsibility, for the upbringing of C, apart from any responsibility of M.

What are the notice requirements?

At least eight weeks before the proposed start of the APL, the employee must give the employer:

  • a written leave notice
  • a signed employee declaration
  • a written mother's declaration

What proof can an employer request?

The employer may request a copy of the child's birth certificate and the name and address of the mother's employer. This must be provided within 28 days of being requested by the employer.

When must an employer respond?

Within 28 days of receiving the requested documents or the employee's notice, the employer must confirm the relevant dates of APL to the employee in writing. APL can only commence eight weeks after the employee has given notice to his employer.

How to implement your Paternity leave policy?

The APL Regulations set out the statutory minimum requirements and apply as the default position, although enhanced paternity leave and pay can be provided in the form of contractual rights or by way of a non-contractual paternity leave policy.

Practical examples of how APL and ASPP work

  • Example 1
    The mother starts her leave 11 weeks before the expected week of childbirth (EWC). The baby is born in the EWC, and the mother returns to work at the end of week 21 of her leave period when the baby is 10 weeks old. The father takes APL straight after the mother returns to work.

    In this scenario, the father will be entitled to take the full 26 weeks' leave. Although he will have to return when the baby is 36 weeks old, the couple will, between them, have been entitled to 47 weeks' leave. ASPP may also be available for the first 18 weeks of the father's APL.
  • Example 2
    The mother starts her leave at the earliest date and the baby is born in the EWC. The mother returns to work at the end of week 38 of her leave and the father takes APL straight after the mother returns to work.

    The father will be entitled to take 25 weeks' APL and will return to work just before the baby's first birthday. As a result, the couple will have been entitled to 63 weeks' leave between them. However, the father will not be entitled to any ASPP at all, since the mother returned with only one week's SMP remaining.

Comment

At present, many employers pay the employee's normal rate of pay during OPL. However, employers are more likely to opt for the statutory rate for the APL due to the potentially longer period of entitlement.

Additional paternity leave is an interim measure pending the proposed introduction of flexible shared parental leave which is due to be introduced in 2015. Ideas under consultation include:

  • both parents being able to take leave at the same time
  • parental leave being taken in a number of chunks rather than a single block, subject to agreement with the employer
  • measures to encourage men to take more leave; for example, through ‘use it or lose it' blocks of time especially reserved for fathers.

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