Greater Manchester Pay and Employment Rights Advice Service

Statutory rights to paternity leave and pay were introduced in 2003, and  extended on 3^rd April 2011. There are two different types of paternity leave and pay, ordinary and additional. This factsheet summarises only statutory paternity rights, which are the basic rights given by law. Employers can give better rights than these in contracts of employment, but they cannot give less.

Who is entitled?

Statutory paternity rights are available to employees who have been continuously employed by the same employer for at least 26 weeks by the end of the 15th week before the start of the week when the baby is due; ie for the whole of the pregnancy. These rights are only available to “employees” not to “workers” in the wider sense of the word. This means that agency workers, office holders and subcontractors are not entitled to them. Such workers however may be eligible for ASPP if the qualifying criteria are met, and if they have stopped working in order to care for the child.

The employee must be either:

• the biological father of the child;
• a partner/husband that is not the baby’s biological father; or
• a female partner in a same sex couple.

The employee must also be able to declare to the employer that:

• s/he will be responsible for the child’s upbringing, and
• s/he will take time off work to support the mother or care for the child.

Ordinary statutory paternity leave

• One or two whole weeks` leave can be taken any time up to 8 weeks after the birth. The weeks can start on any day.
• If the baby is born early the leave can start any time between the date of birth and the end of the 8 week period from the Sunday at the start of the week the baby was originally due.

Ordinary statutory paternity pay

• To get paternity pay during ordinary paternity leave the parent must have earned on average at least as much as the National Insurance lower earnings limit, currently £102.00 (correct until April 2011). Qualifying period?
• It is paid for up to two weeks at £128.73 per week (correct until April 2011) or 90% of average weekly earnings, whichever is less. Employers can recover most of this payment from the government.

Requesting ordinary paternity leave/pay

The form below shows the information that should be provided to an employer by the 15^th week before the baby is due. The parent can change his/her mind about their plans, but must give the employer 28 days` notice unless this is not reasonably practicable eg where the baby is born earlier or later than expected.

Additional statutory paternity leave

Additional paternity leave of 26 weeks is available in respect of babies due on or after 3 April 2011. This additional leave is for a maximum of 26 weeks. It can be taken between 20 weeks and one year after the child is born, if the mother has returned to work. To qualify for additional leave, the father must:

• have been in his current employment for at least 26 weeks by the end of the 15th week before the start of the week when the baby is due;
• still be employed by that employer the week before he wants to start the leave (for these purposes, a week runs from Sunday to the following Saturday);
• be taking the time off to care for the child.

Further, the child's mother must:

• have been entitled to one or more of: statutory maternity leave, statutory maternity pay or maternity allowance;
• have returned to work and ceased claiming any relevant pay.

Additional statutory paternity pay

Additional Statutory Paternity Pay is only payable to the other parent during the period of the mother’s 39 week statutory pay period.

To qualify for additional paternity pay, the other parent must:

• take additional paternity leave;
• intend to care for the child during that period;
• be an employed earner;
• earn at least the National Insurance lower earnings limit.

Further, the mother of the child must have:

• returned to work and
• stopped claiming any relevant pay, with at least two weeks of her statutory 39 week pay period remaining.

Unpaid additional paternity leave

• Parents who are eligible for additional paternity leave but not the additional pay may take the unpaid additional leave;
• Parents who apply for and do not qualify for additional statutory paternity pay must be given form ASPP1 by the employer explaining why not.
• All paternity leave taken after the end of the mother`s 39 week statutory pay period is unpaid.

Requesting additional paternity leave/pay

The form below sets out the information required by an employer:

The employee should also give the employer a declaration by the mother as follows:

If requested within 28 days of giving the above information, the employee also has to give the employer a copy of the child`s birth certificate and the name and business address of the mother's employer or her own business address if she is self-employed.

Enforcing your rights

If an employer refuses to give paternity leave or pay when an employee is entitled to it, or victimises an employee in any way for asking for his/her rights the employee should first of all send the employer a grievance letter. See our factsheet on Grievances for further information. Neither should an employer dismiss an employee for a reason connected to paternity leave and pay.

Other rights for parents

Besides paternity and maternity rights, working parents also have statutory rights to paternity leave, time off for dependants and the right to request flexible working. We have factsheets about all these rights, please contact us for more information if necessary.

There are also a range of benefits available to parents; contact your local CAB, law centre or other advice agency for information about benefits, or ring Community Legal Service on 08453 454345 0r 08456 081122.

This factsheet is a only summary of the law, not a complete statement.

Greater Manchester Pay and Employment Rights Advice Service

0161 839 3888 phone and answer phone

We provide telephone advice only and cannot see people face to face

or visit our website: www.gmemploymentrights.org.uk

Trade Unions

Trade Unions help workers to get better pay and work conditions.

North West TUC, Tel: 0151 236 5432

April 2011