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Paternity Overview

This fact sheet provides a brief summary of the rights of employees to paternity leave and pay and to attend ante-natal appointments with a pregnant woman. For further details on all of these rights, please see Paternity Leave and Pay Factsheet FS13.02.  

Ante-Natal Appointments

Employees who have a "qualifying relationship" with a pregnant woman or her expected child are entitled to take unpaid time off during their working hours to accompany a woman to an antenatal appointment. See Paternity Leave and Pay Factsheet FS13.02.

Agency workers in a “qualifying relationship” are also entitled to accompany a pregnant woman to an appointment provided that they have passed the 12-week qualifying period with the hirer under the Agency Workers Regulations 2010.

The statutory right to time off is limited to no more than two appointments lasting no more than six and a half hours each.

Similar rights apply in relation to those employees who are adopting a child with their partner (where they are not the primary adopter), in order to attend adoption appointments. See Paternity Leave and Pay Factsheet FS13.02.

Employees are protected from suffering a detriment or dismissal as a result of exercising this right.

The Right to Paternity Leave and Pay

Paternity leave may be relevant on the birth of a child or the placement of a child for adoption. Employees are not permitted to take both paternity and adoption leave. See Adoption Overview FS14.01.

Eligible employees (see below) can take up to two weeks’ paternity leave to enable them to care for the child or the child’s mother or adopter. Leave must be taken within 56 days of the birth or placement for adoption and may only be taken in blocks of one week or two consecutive weeks.

Eligibility

Paternity leave is only available to employees, and not to agency workers or self-employed contractors.

Employees must:

  • Have worked continuously for the same employer for 26 weeks as at the 15th week before the expected week of childbirth (EWC) in birth cases, or as at the week in which the child’s adopter is notified of having been matched with a child in adoption cases;
  • Have, or expect to have, responsibility for the child’s upbringing;
  • Be the biological father of the child or be married to, the civil partner of or the co-habiting partner of the child’s mother, in cases of birth, or be married to, the civil partner of or the co-habiting partner of the child’s adopter, or one of a couple jointly adopting a child, in cases of adoption;
  • Be taking the leave to care for the child or support the child’s mother or adopter;
  • Give the required notice to the employer (see below); and
  • Have not taken shared parental leave in respect of the same child (see below).

Notification

The employee must provide notice of their intention to take paternity leave by the 15th week before the EWC in birth cases, and within seven days of the date on which the adopter is notified of having been matched with a child in adoption cases. The employee must confirm:

  • The EWC / the date on which the adopter was notified of having been matched with a child for adoption and the date on which the child is due to be placed with the adopter;
  • the length of paternity leave they wish to take; and
  • the date they wish their paternity leave to start.

See Notification of Intention to Take Paternity Leave Form TP13.01.

The employer may also ask for evidence that the leave is being taken to care for the child or support the child’s mother or adopter and that the employee satisfies the eligibility requirements in terms of their relationship with the mother or adopter. See Notification of Intention to Take Paternity Leave Form TP13.01.

The employee must also provide confirmation of the date of birth or date of placement for adoption as soon as reasonably practicable after the relevant date. See Notification of Birth/Adoption Placement Form TP13.02.

Paternity Leave can start:

  • on the date on which the child is born / placed with the adopter;
  • a chosen number of days after the birth / placement; or
  • on a chosen date which must be after the first day of the EWC / after the date on which the child is expected to be placed for adoption.

If the baby is born later than the chosen date to start leave, the leave must be delayed until the date of the actual birth. Paternity leave can start on any day of the week. Only one period of leave is permitted when there is a multiple birth or placement.

Rights during Paternity Leave

During paternity leave, the employee’s contract of employment continues in force and the employee is entitled to receive all their contractual benefits, except for salary/remuneration. This means, for example, that contractual annual leave will continue to accrue.  Other non-cash benefits in kind such as private medical insurance, life assurance, permanent health insurance, private use of a company car or laptop and gym membership should also continue. Any employee will therefore have a claim if, because of absence on paternity leave, the employer deprives the employee of any non-cash benefits in kind to which the employee would otherwise have been entitled.

Pension contributions should continue to be made during paternity leave.  Employee contributions will be based on actual pay, while employer contributions will be based on the salary that the employee would have received had they not gone on paternity leave.

Salary will be replaced by SPP if the employee is eligible to receive it.

Returning to work after Paternity Leave

On returning to work after paternity leave, the employee is entitled to return to the same job on the same terms and conditions of employment as if the employee had not been absent.

Protection against unfair treatment and dismissal

Employees are protected from suffering unfair or detrimental treatment for taking, or seeking to take, paternity leave and they have the right to complain to an Employment Tribunal if they have been treated unfairly.

It is automatically unfair to dismiss an employee (or to select them for redundancy in preference to comparable employees) for a reason connected to the fact that the employee took, or sought to take paternity leave, or because the employer thought they were likely to take such leave. Employees do not need to have two years’ service to make such a claim.

Statutory Paternity Pay

In order to claim Statutory Paternity Pay (SPP), the employee must remain in the same employment until the date of birth or the date the child is placed for adoption.

During paternity leave, most employees are entitled to SPP from their employers.  To be eligible to receive SPP, an employee:

  • must have been continuously employed by their employer for at least 26 weeks ending with the 15th week before the expected week of childbirth or, in respect of an adopted child, ending with the matching for adoption week and still be employed during that week (and in the case of adoption, continue to be employed until the date of the child’s placement);
  • must have average weekly earnings in the eight weeks up to and including the 15th week before the expected week of childbirth, or up to and including the matching week, at least equal to the lower earnings limit for the payment of National Insurance contributions (the current limit can be found on our Statutory Rates and Limits table); and
  • must have declared their eligibility for SPP by giving their employer a completed self-certification form at least 28 days before they want their SPP to start (or as soon as reasonably practicable).

See Notification of intention to take paternity leave form TP13.01.

SPP is paid by employers for either one or two consecutive weeks as the employee has chosen.  The rate of SPP is the same as the standard rate of statutory maternity pay (SMP) or 90% of the employee’s average weekly earnings if this is lower than Government’s set weekly rate.  The current rate can be found on our Statutory Rates and Limits table.

SPP is treated as earnings and is therefore subject to deductions of income tax and National Insurance contributions.

Recovery of SPP payments

Subject to certain exceptions, employers may recover 92% of the amount of SPP paid to an employee by making one or more deductions from their Class 1 National Insurance contributions. 

A ‘small employer’ (defined as an employer whose total National Insurance contributions for the qualifying tax year do not exceed £45,000) may recover the full amount of SPP plus 3% in compensation for the employer’s portion of National Insurance contributions paid on SPP.   This is recovered by deducting the SPP paid from the Class 1 National Insurance contributions.  Employers who need to can also receive funding in advance for payments of SPP from HM Revenue & Customs.

Shared Parental Leave

Where a mother or adopter brings their maternity or adoption leave to an end early, it is possible for the mother/adopter to transfer any remaining leave and/or pay to a shared pot, which can be used as shared parental leave (SPL). There are eligibility requirements for SPL and a statutory notification process that needs to be followed. For further information on this, please refer to:

Shared Parental Leave Policy

Shared Parental Leave and Pay Factsheet FS88

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.