TALKING SHOP
Paternity Leave Changes – The Nanny State? P
rior to the General Election, the Labour Government passed the Additional Paternity Leave Regulations 2010. The regulations now help those with babies born on or after 3 April 2011. With a trap set to spring, especially in situations where a father earns less than a child’s
mother, the changes are quite radical and could catch out many businesses. In a special feature, employment lawyer Matthew Welch guides readers through the new law.
The change Under the old regime, eligible employees could take up to 2 weeks leave as ordinary paternity leave (OPL). Under the new Regulations, from 3 April, employees will be able to take additional paternity leave (APL) of up to 26 weeks. Eligible employees will be able to take both OPL and then APL. As well as applying to employees whose child is due on or after 3rd April 2011 APL will apply to adoptive parents notified that they have a matched child on or after this date. The problems and challenges for employers will be akin to those that relate to maternity leave.
Who is eligible? The criteria for eligibility are broadly similar to OPL. 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 idea of APL is for the father, or mother’s partner, to share in the responsibility for childcare and for the father, or the mother’s partner, to take over from the mother when she returns to work.
How long is APL? The minimum period of leave is 2 weeks and the maximum is 26 weeks and it can be taken 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.” Then within 28 days of receiving the employee’s notice the employer must give the employee written confirmation of the dates of the employee’s APL.
Once the employee and employer have given their notices is the date for APL fixed? Not always. There are circumstances where the employee must withdraw their notice, including if they discover they are not the child’s father, or where they cease to have responsibility for bringing up the child; or where the mother has not returned to work. The employee can change the dates of their APL providing the APL has not yet started and they give the employer 6 weeks’ notice. The employee can also return to work earlier providing they give at least 6 weeks’ notice.
What happens if the employee’s job becomes redundant while they are on APL? Employees on APL are treated as favourably as women employees on maternity leave. In effect they are allowed to go to the head of the queue and have to be offered, before any other employees, any suitable alternative employment. Failure to offer alternative employment to an employee on APL whose job has become redundant will make the employee’s dismissal automatically unfair.
32 • FOOTWEAR TODAY • JUNE/JULY 2011
by Matthew Welch
Does the employee have to return to their old job? 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, with their seniority, pension rights and other contractual rights as they would have had, had they not been on APL.
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. ASPP can be claimed from the date APL starts, which will be when the child is 20 weeks old, and ends at the earlier of the child’s first birthday or the end of the mother’s maternity allowance or statutory Maternity Pay period. The idea is that the employee on APL in effect takes over the mother’s Statutory Maternity Pay.
How much is ASPP and who pays it? From 11th April 2011 it is £128.73 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 SMP. 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 £45,000 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. An employee can also bring a tribunal claim to claim compensation if they can show they have suffered a detriment, such as loss of pay or benefits, being unfairly disciplined or demoted.
Matthew Welch
Matthew Welch, is a solicitor at Bath Law.
matthew@bathlaw.com
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