Additional Paternity Leave and Pay - Employers invited to comment on draft regulations

Written by Ian Congreave - Filed under: Statutory Redundancy Pay on September 29th, 2009

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Following on from the announcement on 15 September that additional paternity leave and pay will be introduced from April 2011, the Department for Business, Innovation and Skills (BIS) has published the third consultation document on the subject, this time providing information on the detail of the policy, supported by draft Regulations and a detailed Partial Impact Assessment.

The Government first consulted on an extension to paternity leave and pay in March 2006 and decided in principle how the new rights would work. By means of the Work and Families Act 2006, the framework legislation was inserted into the Employment Rights Act 1996 and the Social Security Contributions and Benefits Act 1992.

A further consultation exercise was undertaken in May 2007, and decisions on the key administrative aspects of the scheme were published in a feedback document in January 2008.

The concept on which additional paternity leave and pay is based is that a mother or adopter with entitlement to 52 weeks of maternity or adoption leave may choose to give up some or all of the second 26 weeks of the leave (and the statutory pay due for the leave period) for the father or the other adopter to take instead. Based on survey evidence, the Government estimates that between 10,000 and 20,000 will take up the right each year, between 4% and 8% of eligible fathers.

The current understanding of the new rights, based on the latest consultation document and the draft regulations, is summarised below. These are not the final rules and are liable to change as a result of consultation feedback

Please note: Depending on the circumstances, paternity leave can be taken by both men and women. In the following notes, for the purposes of clarity and simplification,

the term “father”,
- in the context of maternity, includes the partner or civil partner of a mother (whether a man or a woman), and
- in the context of adoption by couples, refers to an adopter (whether a man or a woman) who chooses not to receive Statutory Adoption Pay.
the term “mother” applies, according to the context, to a person (whether a man or a woman) who takes maternity leave or adoption leave, or receives Statutory Maternity Pay, Maternity Allowance of Statutory Adoption Pay.
the term “child” applies, according to the context, to a baby born to the mother or to a child placed for adoption.

Commencement
Entitlement to additional paternity leave and pay will have effect in relation to

children whose expected week of birth begins on or after 3 April 2011, and
children matched for adoption on or after 3 April 2011.

With regard to paternity leave and pay for a birth, most cases will start to occur from September 2011 onwards, i.e. 20 weeks of so after births from April 2011. However, some earlier cases are possible,

as early as April 2011, in the event of premature births from November 2010 onwards, and
as early as November 2010, in the rare situation where a baby is born prematurely, the mother dies in childbirth and, as permitted exceptionally by the rules in these circumstances, the father takes additional paternity leave immediately.

With regard to paternity leave and pay for adoption, entitlement will also start to occur from September 2011 onwards. The initial one or two weeks of paternity leave cannot be taken until the adopted child is actually placed for adoption, i.e. comes into the adopter’s home. Placement always occurs after matching and the period between can vary considerably. As entitlement to additional paternity leave and pay for adoption only applies to matching dates from 3 April 2011, it is not possible, unlike leave for births, for entitlement to occur before that date.

When the original paternity leave regulations were introduced in April 2003, entitlement to paternity leave for adoption took effect for children matched for adoption on or after 6 April 2003 or placed for adoption on or after that date. In this latter situation, the matching date would have fallen some weeks, or even months, before 6 April 2003, making it possible for entitlement to paternity leave for adoption to have occurred before that date. However, no equivalent provision is included in respect of the start of additional paternity leave and pay in 2011.

Ordinary paternity leave
The right to paternity leave and statutory paternity pay (SPP), as currently set out in legislation, provides an employee who is the father of a child, or married to, or the partner or civil partner of the child’s mother or adopter, to take up to two weeks’ paid leave around the time of a birth or adoption. No changes are planned to the rules and procedures for paternity leave, other than a potential change to the qualifying conditions that would require the employee taking paternity leave to be an adopter, as well as the person taking adoption leave. (See Couples adopting together and partners of adopters, below) To distinguish it from the new right to additional paternity leave (APL), it will be known as “ordinary” paternity leave (OPL).

Ordinary statutory paternity pay

The only change to SPP in April 2007 was the introduction of the use of daily rates. No further changes are planned to SPP rules and procedures, again with the exception of a possible new requirement for the person receiving SPP to be an adopter. To distinguish SPP from the new right to additional statutory paternity pay (ASPP), it will be known as “ordinary” statutory paternity pay (OSPP).

Additional paternity leave

Entitlement
To qualify for Additional Paternity Leave (APL), an employee must:

in the case of a birth, be the father of the child, or married to or the partner or civil partner of the child’s mother,
in the case of adoption, married to or the partner or civil partner of the child’s adopter,
comply with the statutory notice, information and evidential requirements,
have, or expect to have, if the father, responsibility for the upbringing of the child or, otherwise, the main responsibility
be taking leave for the purpose of caring for the child, and
have been entitled to OPL and still be in the same employment in the week before the first week of APL.

In addition, the mother must

make a signed declaration and provide specified information,
be entitled to
- maternity or adoption leave,
- Statutory Maternity Pay or Statutory Adoption Pay, or
- maternity allowance,
be treated as having returned to work, i.e.
- her maternity or adoption leave has ended, and/or
- entitlement to SMP, SAP or MA has ended.

Entitlement of a father to additional paternity leave and pay provides another reason for not paying all of a mother’s entitlement to SMP or SAP in a lump sum if she leaves her employment before taking leave and after having qualified for SMP or SAP. That would prevent the father taking paternity leave until the 39-week maternity/adoption pay period has ended.

As long as the employee is still in the same employment as he was when taking OPL, no further eligibility test is required for APL. An employee who qualified to take OPL will automatically be entitled to APL.

Example: A mother is entitled to 52 weeks’ maternity leave. She agrees with the father that they will split the 52 weeks equally between them – she returns from maternity leave after 26 weeks and he takes additional paternity leave for the remaining 26 weeks.

Multiple births or multiple adoptions under the same arrangement do not provide any extra entitlements to APL or ASPP.

Duration
During APL, the father is entitled to the benefit of his terms and conditions equivalent to a woman taking Ordinary Maternity Leave, namely to the benefit of all of the terms and conditions that would have applied if he had not been absent, with the exception of remuneration, i.e. wages and salary, and pension contributions during unpaid periods of leave.

APL must be taken in a single block of whole weeks, lasting for a minimum of 2 weeks and a maximum of 26 weeks. It cannot start until the mother is treated as having returned to work, although it is not necessary for her physically to return to work.

There is no requirement for APL to start immediately after maternity or adoption leave ends. A gap is permitted to allow, for example, the mother to take paid holiday leave after her maternity leave ends, or the father to delay the start of his APL.

The earliest date from which the father may start APL (and receive ASPP if the additional conditions are met) is 20 weeks from, in the case of a birth, the actual date of the birth or, in the case of adoption, the actual date of placement. The period of APL must end no later than one year after the date of birth or one year after the date of placement.

However, APL may start earlier if the mother dies during or shortly after childbirth, or shortly after placement. In these situations, APL could last for 52 weeks and ASPP could be paid for up to 39 weeks. See If the mother dies, below.

The father is entitled to up to ten ‘Keeping in Touch’ days during the period of APL, however long it is, under the same rules that apply for maternity and adoption leave.

Example: A mother takes 26 weeks’ maternity leave and the father then takes 26 weeks’ paternity leave. Each of them takes ten KIT days during their periods of leave.

Returning to work
If the father wishes to return to work earlier than the chosen date, he must give the employer at least 6 weeks’ notice and, if he wishes to make a further change, must again give 6 weeks’ notice. It should be noted that this period of notice is different from the 8-week period required for early return from maternity or adoption leave.

On return from leave, the father has the same right of return to his original job, with full seniority and pension rights, as a woman returning from ordinary maternity leave. However, if the father takes a longer period of leave or two or more periods of consecutive statutory leave, the return would be to a suitable alternative job.

Additional statutory paternity pay

Entitlement
To qualify for ASPP, an employee must be entitled to APL and, in addition, meet the normal average earnings condition. The period over which average earnings are calculated is the same period that is used to determine entitlement to OSPP, even though payment of OSPP will have occurred some six months earlier. The effect is that a father who is entitled to OPL and OSPP will automatically be entitled to APL and ASPP as long as he is still in the same employment.

ASPP is paid at the lower of (1) the standard rate of SMP/SAP (currently £123.06 per week), and (2) 90% of the father’s average earnings. Employers will be able to recover their usual proportion of payments of ASPP.

Duration
The period during which ASPP may be paid is limited to the 39-week statutory maternity or adoption pay period during which SMP or SAP would otherwise have been paid. If a father takes the full 26 weeks of APL, only the number of those weeks up to week 39 will be paid.

Examples

A woman has a baby and qualifies for SMP with her employer. Her husband applies to his employer to take ordinary paternity leave at the time the baby is born and receives two weeks’ OSPP. The mother returns to work after 22 weeks, after having given her employer 8 weeks’ notice to return to work early. At the appropriate time, her husband gives notice to his employer of his intention to take the maximum 26 weeks of his wife’s maternity leave as additional paternity leave, starting immediately on his wife’s return to work. However, after 15 weeks, he gives 6 weeks notice to return to work early (after week 43). He receives ASPP for the first 17 weeks of his wife’s maternity leave that he has taken (up to week 39) and no pay at all for the remaining 4 weeks of his leave.
A couple adopt a child and the adoptive father chooses to take and qualifies for SAP with his employer. The adoptive mother takes two weeks’ paternity leave at the time the child is placed with them and receives two weeks’ OSPP from her employer. The adoptive father gives eight weeks’ notice to his employer and returns to work after 32 weeks of adoption leave. At the appropriate time, the adoptive mother gives eight week’s notice to her employer to take the remaining 20 weeks of the adoptive father’s adoption leave as additional paternity leave. She receives ASPP for 7 weeks (up to week 39) and returns to work at the same time as the adoptive father would have done if he had taken his full entitlement to adoption leave.

Couples adopting together and partners of adopters
The consultation document also proposes a change to the definition of “adopter” to reflect more closely current adoption law in England, Scotland and Wales (but not Northern Ireland). One of the qualifications for ordinary paternity leave is for the employee taking the paternity leave to be “either married to, the civil partner or the partner of the child’s adopter”. As a “partner”, by definition, does not have to be married or a civil partner of the adopter but simply “in an enduring family relationship”, the person taking paternity leave for adoption does not necessarily have to be an adopter. However, adoption law has changed since the paternity leave regulations were made in 2002, with the result that a person in an enduring relationship with the adopter would most likely also be matched for adoption with the child.

The Government’s view, therefore, is that the person taking adoption leave and the person taking paternity leave should both be matched for adoption with the child. The suggestion therefore is that the regulations should include a specific requirement to that effect.

Overseas adoptions
The initial regulations do not apply to adoptions from overseas. The Government’s intention is to introduce equivalent provisions at a later date covering this situation.

Administrative procedures
In May 2007, BIS started to consult 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 provided a clearer picture of how the scheme will operate. Decisions based on comments received from interested parties were published in January 2008. The latest consultation document and the draft regulations make some changes to the administrative procedures.

Administration is intended to be as simple and straightforward as possible. The mother and father will jointly certify to the father’s employer that the father is eligible for additional paternity leave and pay. There is no requirement for HMRC or the employer of the father to be involved in the process, although the father’s employer may ask the father for details of the mother’s employer in order to obtain confirmation that the mother is entitled to SMP or SAP and has returned to work.

Potential for fraud
The earlier consultations raised concerns from employers about fraudulent claims and employers being held liable for wrongful payments of ASPP. These issues have been taken into consideration in preparing the final procedures. 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 procedures are intended 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 claimants who either fraudulently or negligently make a claim for ASPP.

Employee procedures
A relatively simple self-certification procedure will be followed by both mother and father that will confirm the father’s eligibility for 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 is not required to check any details with the mother’s employer but may do so if he wishes.

The existing rules for OPL require the father’s request to be put in writing if the employer asks for it, although some personal information must be provided on the SC3 or SC4 self-certificate, or an equivalent substitute, in order to claim SPP. In order to qualify for APL and ASPP, the father must provide the following information, as appropriate to paternity leave for a birth or adoption:

for entitlement to both APL and ASPP:
- written notice from the employee, giving
  - the expected week of the child’s birth, or the matching date,
  - the date of the child’s birth, or the date of placement,
  - the date on which the employee has chosen to start APL, and
  - the date on which the employee has chosen to return from APL.
- a written declaration by the employee that
  - he meets the statutory conditions for entitlement, and
  - he is taking the leave for the purposes of caring for the child.
- a written declaration by the child’s mother, giving
  - her name and full address,
  - the date she intends to return to work, and
  - her National Insurance number.
additionally, for entitlement to ASPP:
- written notice from the employee, giving
  - the date on which it is expected that liability to pay ASPP will begin, and
  - the date on which it is expected that liability to pay ASPP will end
- a written declaration by the child’s mother, giving
  - confirmation that she has given notice to her employer that she is returning to work
  - the date the mother’s statutory maternity, maternity allowance or adoption pay period began.

If requested by the father’s employer, the father must also provide, within 28 days of the request,

a copy of the child’s birth certificate or matching certificate, and
the name and business address of the mother’s employer.

The fact that the father’s name does not appear on a birth certificate does not disqualify the father from APL and ASPP.

Both the father and the mother will be required to make a signed declaration that the information provided is correct. No decision has yet been made on whether the SC3 and SC4 self-certificates will be amended to obtain this information or a new form will be introduced. Employers will be able to produce their own substitute versions of the form if they contain, as a minimum, the information on the standard HMRC form. The employer will have to retain it for three years in case of compliance checks.

If a father has two or more employments, entitlement to additional paternity leave and pay arises in any of them in which the necessary conditions are met, requiring a separate self-certificate for each employer. However, if a father continues to work for an employer for whom he did not work in the qualifying week or matching week, ASPP is not payable by any of the employers.

Employer procedures
If the father has already taken OPL and received SPP, the father’s employer, on receiving the self-certificate, should not need to make any further entitlement checks. If the father was entitled to paid ordinary paternity leave, he is also entitled to paid additional paternity leave up to the 39-week combined limit.

However, if the father did not request to take OPL, 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 or matching 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.

After receiving notice from the father of his intention to take additional paternity leave, or notice of a change to the arrangements, the employer must confirm entitlement within 28 days.

A “checklist” will be made available to help the employer determine a father’s entitlement to ASPP. Completion of the checklist will not be mandatory but employers will be encouraged to use it in order to demonstrate that reasonable care was taken in granting additional paternity leave and pay. If employers choose not to use the checklist then they will still need, by some other means, to satisfy themselves (and potentially also HMRC) that they have carried out the necessary checks for compliance purposes.

The checklist will confirm that:

the employee has notified within 8 weeks before the intended start date
the employee has the 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 has provided the relevant start and intended stop dates
the baby will be
- at least 20 weeks old when the employee starts additional leave
- 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
If the mother dies during childbirth or later, the father may start APL at any time between the date of her death and 12 months after the child’s birth or placement, providing APL for up to a year. However, this provision does not apply if the father has taken APL and returned to work before the mother’s death. If the father has already started APL when the mother dies, the period of APL may continue until 12 months after the child’s birth or placement even if that means that it will last for more than 26 weeks.

The father will still be required to provide information and evidence relating to the mother’s entitlement to pay and leave as soon as possible after the date of the mother’s death. The notice requirements also apply, with the exception of the father’s initial 8-week notice period and the employer’s 28-day confirmation period.

Entitlement to payment of ASPP continues until the end of what would have been the mother’s maternity or adoption pay period.

Termination of employment during paternity leave
The regulations do not prevent a father’s employment from being terminated during paternity leave for valid reasons. However, protection is provided, as with maternity and adoption leave, against selection for redundancy because of taking paternity leave. In the event of legitimate redundancy, proper procedures must be followed at the time of the redundancy, including the offer of suitable alternative work.

The protections provided in the legislation against detrimental treatment of any kind or unfair dismissal as a result of entitlement to take, or actually taking, additional paternity leave comes into effect from 6 April 2010, well before employers are likely to become aware of the entitlement of an employee to ordinary or additional paternity leave.

Changing the start and return dates
The father may wish to

change the intended start date, or
change the intended return date, or
cancel taking the leave altogether,

thereby creating difficulties for his employer.

These situations could arise because the mother decides to delay her return to work, or the father no longer meets the qualifying conditions, or simply has a change of mind about taking leave. Because the father’s employer is likely to have arranged cover for the absence, the father is required to give six weeks’ notice of a change to the start or return dates. If a shorter period of notice is given to change

the start date, the employer has the options of agreeing to the earlier start nevertheless, or enforcing the original start date, or deferring the start until the full six weeks have passed.
the return to work date, the employer may agree to the earlier return date or defer the return until the full six weeks have passed.

Changes of circumstances
The father is required to inform his employer, giving six weeks’ notice, if a change of circumstances mean that he is no longer entitled to APL and ASPP. Such changes could include a change in family status or in the entitlement of the mother to SMP, SAP or MA. If the father cancels his notice to take APL and the employer cannot accommodate the change, the employer can enforce APL for six weeks or, if leave has already started, for a further six weeks. However, entitlement to ASPP stops as soon as the notice is cancelled.

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 14 September 2011.

Consultation questions and timetable
The Government invites employers and parents to comment on the following questions:

Do you consider the proposed administration of Additional Paternity Leave and Pay strikes the right balance between the need to keep administration simple and the need for certainty of entitlement?
The Government estimates that 4-8% of eligible fathers will apply for APL&P. What is your assessment of this figure?
Do you agree with the proposal to amend the definition of an adopter?
What are your views on the draft regulations?
How well do you consider the draft regulations support the policy proposal, including giving sufficient power and protections to employers in managing this entitlement and to employees using this entitlement?
How well do you consider the partial impact assessment captures the costs and benefits of this proposal? Please provide additional evidence where possible.

The consultation period runs until 20 November 2009

The Government intends the legislation to be in force from April 2010 and for it to apply to births and adoptions from April 2011.

Further information:
Additional Paternity leave and Pay - Consultation on draft regulations
Choice for Families: Additional Paternity Leave and Pay - Consultation on Draft Regulations