Additional Paternity Leave and Pay - Public consultation of the administration of the new rights

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Qualifying fathers and adoptive parents currently have the right to one or two weeks "ordinary" paternity leave and pay at or shortly after the birth or placement for adoption. Likely from April 2009, the government is to introduce a new right to up to 26 weeks "additional" paternity leave and pay where the other parent returns to work early from maternity or adoption leave. It will coincide with the increase in the period of maternity and adoption pay from 39 weeks to 52 weeks.

The Department of Trade Industry is consulting on the administrative arrangements that employers will have to apply when additional paternity leave and pay are introduced. The consultation document, entitled Additional Paternity Leave and Pay Administration Consultation, provides a clearer picture of how the scheme will operate. There will be another consultation at a future date about the wording of the secondary legislation.

The proposals are intended to make the administration as simple and straightforward as possible. Neither HMRC nor the employer of the person taking maternity or adoption leave will be involved in the process. The proposal is for the mother and father to jointly certify to the father's employer that the father is eligible for additional paternity leave and pay. (References here and below to the "mother and father" include the mother and the mother's partner or civil partner, and, in the case of adoptions, both adoptive parents.

The consultation document sets out how the process would work in practice and identifies what is required of the father, the mother and the father's employer. Views are sought on the practicalities of the process, the notification period for a father's employer to confirm the employee's entitlement, the form that may be used for self-certification and the use of a checklist to help employers.

Potential for fraud

The earlier consultation raised concerns from employers about fraudulent claims and employers being held liable for wrongful payments of additional statutory paternity pay (ASPP). These issues have been taken into consideration in preparing the latest proposals. Employers will not be penalised for making a genuine mistake or making a payment in good faith. HMRC regards the risk of fraud by employees and employers as relatively low, with minimal consequences for taxpayers' funds. The DTI proposes to tackle the issue in a proportionate way, with HMRC conducting compliance checks on some employees and employers, with sanctions in the form of financial penalties for those who abuse the system.

Self-certification procedures

The DTI's preferred approach is a relatively simple self-certification by both mother and father that will confirm the father's eligibility to additional paternity leave and pay to the father's employer. The father will have to give eight weeks notice of his intention to take additional paternity leave. Responsibility for meeting the set timescales will fall on the father and mother alone. The father's employer will not have to check any details with the mother's employer.

Other options have been considered but ruled out. The potential for fraud could be reduced if the mother's employer were involved in every case. The mother would give the completed self-certificate, or part of it, to her employer. That employer would certify the accuracy of the information and return it to the mother for the father to pass on his employer. However, this would not necessarily reduce the risk of abuse as either parent could manipulate the form before the father's employer receives it.

Another option would be for the mother's employer to pass the completed form to the father's employer after confirming the contents. This would reduce the risk of fraud but would increase the potential for delays and communication failures. However, to involve the mother's employer in the procedure is seen as placing an unnecessary burden on a third party who is not, in most cases, the father's employer and not involved in handling any aspects of the father's paternity leave and pay.

The existing rules for ordinary paternity leave require the father's request to take leave to be put in writing if the employer asks for it, although some personal information must be provided on the SC3 self-certificate, or an equivalent substitute, in order to claim ordinary paternity pay. As further self-certified information will be a mandatory requirement for additional paternity leave, it is proposed to design a new SC3 self-certificate to provide the necessary information for both ordinary and additional paternity leave and pay. An equivalent substitute would be acceptable but, as a mandatory form, the employer would have to retain it for three years in case HMRC undertakes a compliance check.

If a father has two or more employments, there would be entitlement to additional paternity leave and pay in any of them in which the necessary conditions are met. A separate self-certificate would be required for each employer.

The consultation document includes a draft version of the proposed new SC3 self-certificate.

Responsibilities of the father's employer

If the father has already taken "ordinary" paternity leave, i.e. the one or two week's leave at the time of the baby's birth, the father's employer, on receiving the self-certificate, should not need to make any further entitlement checks. If the father was entitled to ordinary paternity leave, he is also entitled to additional paternity leave.

However, if the father did not request to take ordinary paternity leave, his eligibility will have to be checked by confirming that he had six month's employment and the necessary average earnings at the mother's qualifying week. If the father is not entitled to additional paternity leave, the employer will have to give written reasons and the existing SPP1 exclusion form is likely to be amended for this purpose.

It is proposed that, after receiving notice from the father of his intention to take additional paternity leave, the employer will have to confirm entitlement with 28 days.

The consultation document includes a draft "checklist" that could be used to assist the employer in determining a father's entitlement to ASPP. Views are sought on whether or not completion of the checklist should be mandatory in order for the employer to be able to demonstrate that reasonable care had been taken in granting additional paternity leave and pay. The checklist would confirm that:

• the employee has notified within 8 weeks before the intended start date
  
  
• the employee has necessary length of service
  
  
• the employee has the necessary average weekly earnings
  
  
• the employee has made a declaration of family commitment
  
  
• the mother is receiving SMP, SAP or Maternity Allowance and provide the relevant start and intended stop dates
  
  
• the baby will be at least 20 weeks old when the employee starts additional leave
  
  
• the baby will be less than one year old when the employee ends additional leave
  
  
• the employee's period of leave will not exceed 26 weeks.

If the mother dies

A father will be able to start additional paternity leave earlier than 20 weeks after the baby's birth if the mother dies during childbirth or later - as early as the date of death. The period of leave in this situation could be for all of the mother's remaining maternity leave - up to a full year.

Although the father will still be required to complete and SC3 certificate and the employer to confirm entitlement, the father's 8-week notice period and the employer's 28-day confirmation period will not apply. Separate guidance is to be provided to help both employers and employees.

Outstanding issues

There are a number of potential situations that could arise that could create difficulties for the father's employer. The father may wish to change the intended start date, or change the intended return date, or cancel taking the leave altogether. These situations could occur simply due to a change of mind about taking leave or because the mother has decided to delay her return from leave. Because the father's employer is likely to have arranged cover for the father's absence, the consultation document proposes that the father be required to give notice of any changes. Comments are requested on how much notice would have to be given. If notice is not given and the father no longer wishes to take leave, the employer may have to require the father to take the leave anyway and, if the mother has not returned to work, that leave would have to be without pay because he is no longer entitled to ASPP.

Timeline for additional paternity leave and pay

The following Table demonstrates, step-by-step, how additional paternity leave and pay and self-certification are likely to operate in practice. In the example, the expected date of childbirth is 15 September 2010.

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