additional paternity leave
Jane Jelley, our employment law specialist provides information on changes to paternity leave in the UK
The rules on paternity leave have just undergone a major shake-up with the introduction of Additional Paternity Leave (APL). Essentially, here’s what the government has to offer:-
The right to additional paternity leave (APL) will enable fathers and other eligible employees, including same-sex partners, to take additional time off work, to care for a child before he/she reaches their first birthday, where the mother (or adopter) has returned to work. This is in addition to the right to two weeks’ paid statutory paternity leave (Ordinary Paternity Leave).
Are you entitled to take APL?
Although the Additional Paternity leave Regulation came into force on 6th April 2010, it will only be available to parents of babies due (or adoptive parents notified of a match) on or after 3rd April 2011. This means that you could be entitled to APL if a baby is born earlier than expected. To qualify, the father or partner of the child’s mother must be an employee.
The eligibility criteria for APL essentially mirror those for OPL. In short, you must satisfy the following conditions:-
- You must have been continuously employed for at least 26 weeks ending with the 15th week before the expected week of childbirth.
- You must have, or expect to have the main responsibility for the upbringing of the child (besides the mother)
- You must be taking the time off to care for the child.
- You must stay in the employment of the same employer until the week before the first week of APL.
- You must be the biological father of the child, or married to, or the partner or civil partner of, the child’s mother.
- The child’s mother must be entitled to maternity leave, statutory maternity pay or maternity allowance, and must have returned to work.
How long is APL?
APL must be taken as one continuous block of a minimum of two and maximum of 26 complete weeks. APL can only be taken 20 weeks after the birth of the child with only one period per pregnancy irrespective of the number of children born.
Applying for APL
Similar to the OPL – the onus is on you to provide the necessary information to your employer within the relevant timescales.
To qualify, you should give your employer written notice at least 8 weeks prior to the beginning of your leave period. You could provide that notice on forms SC7 (for births), SC8 (for UK adoptions) or SC9 (for overseas adoptions), all of which are available on the HMRC website (www.hmrc.gov.uk). Or you could use an in-house form or even just a letter containing the relevant information.
The information you are required to provide includes the actual date of birth of the child and the date you would like to commence your APL. You will also have to sign a declaration confirming that you are taking leave to care for the child, that you have or expect to have responsibility for the child, and that you are the father of the child or husband, civil partner or partner of the child’s mother.
The child’s mother will also have to provide a declaration stating, her name; address; national insurance number; date she intends to return to work; that you are the father or spouse, partner or civil partner and that you have the responsibility (apart from her own) of bringing up the child; that you are the only person entitled to APL and that she consents to the employer processing the information she has provided.
Within 28 days of receiving your request your employer can request a copy of the child’s birth certificate and the name and address of your partners employer/or business if they are self-employed.
Your employer could make a request for additional information from you, however, if this is not the norm – this may give rise to potential discrimination.
Your employer is required to respond to your request for APL within 28 days.
Do my Terms and conditions change during APL
NO - Your contract of employment continues during APL and you should be treated as if you were not absent, both in terms of benefits and obligations. You will therefore continue to accrue statutory and contractual holiday, the only exception being that you will not be entitled to your contractual salary, unless of course your contract provides otherwise.
Returning to work after APL
If you are returning to work from a period of APL which lasted no longer than 26 weeks and was: 1) an isolated period of leave or 2) the last of two or more consecutive periods of statutory leave, which did not include any period of additional maternity leave or additional adoption leave, or a period of parental leave of more than four weeks, you are entitled to return to the job in which you were employed before your absence. On your return, you are entitled to enjoy your seniority, pension rights and similar rights as they would have been if you had not been absent and on terms and conditions not less favourable than those which would have applied if you had not been absent.
Otherwise, you are entitled to return to the job in which you were employed prior to your leave, unless it is not reasonably practicable for the employer to enable you to do so. If this is the case you have the right to return to a suitable and appropriate alternative job.
Changing or withdrawing the APL period.
If you need to change the APL period previously agreed with your employer, you should notify your employer in writing immediately, preferably before the earlier of: - 6 weeks before the date that you are cancelling or varying, or 6 weeks before the new date.
If you are unable to provide your employer with sufficient notice of your wish to vary your APL period, your employer may not accommodate any request for change if it is not reasonably practicable for them to do so and may even require you to take the APL as previously planned.
Similarly, if you are no longer eligible for APL, for example because your partner is no longer returning to work, you should notify your employer immediately because your employer can still require you to take the period of APL if your withdrawal is less than 6 weeks before the APL was due to start or has already started.
Return to work
Although the intention is that only one parent would be absent from the workforce at any one time, the mother is permitted to take annual leave at the same time as your period of APL commences and therefore the regulations should be interpreted to include a change from maternity leave to annual leave as a return to work.
What happens if there is a redundancy situation during my APL period?
You have more protection than those employees who are not taking a period of APL in such circumstances. This is because special provisions apply where an employer intends to terminate an employee’s employment on the ground of redundancy during APL. In these circumstances, you are entitled to be offered alternative employment with your employer, a successor or an associated employer, before the end of your employment under your existing contract were there is a suitable available vacancy. Failure to offer any suitable alternative employment to you could result in your dismissal being automatically unfair.
As dedicated employment solicitors, The Associate Law Firm can assist you if you feel that you have experienced difficulties with your employer. They have successfully helped many employees to resolve matters with their employers or seek redress where necessary. Please contact Jane Jelley via our site by visiting the support page.
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