Charlotte Moore explains the current entitlement of fathers to paternity leave and pay and provides an overview of flexible parental leave, to be introduced by the government in 2015.

As with many aspects of employment law, the government is making changes to the provision of paternity and parental leave. Unlike most of the other changes, however, these are, on the whole, an improvement on current provision and certainly offer more flexibility to employees.

Ordinary paternity leave

Fathers and partners are currently entitled to take up to two weeks’ paid time off around the time that the baby is due to be born (or matched for adoption) to care for the baby or support the child’s mother.

The law defines a partner as someone who lives with the mother in an “enduring family relationship” but who is not a relative. Paid leave is also available to women when the father has taken adoption leave.

To qualify, the employee has to have worked continuously for 26 weeks for their employer by the 15th week before the date the baby is due.

Fathers and other qualifying employees can take either one or two weeks leave, which must be taken within 56 days of the child’s expected week of birth or placement. It cannot be taken as odd days off and the two weeks must be taken together.

If the mother gives birth to more than one baby, the father still only receives one period of paternity leave.

Fathers who want to apply for ordinary paternity leave must tell their employer (in writing, if requested) the date that the baby is due, how long they expect to be off (one week or two) and when they want the leave to start.

And they have to tell the employer all this by the 15th week before the baby is due. They can, however, vary the date by giving 28 days’ notice before the first day of the expected week of birth, if that’s practical. If not, then as soon as they can.

In the case of adoption, the notice has to be given no more than seven days after the date on which the adopter is notified of having been matched with the child.  Again, the employee can vary this date by giving 28 days’ notice.

Additional paternity leave

Fathers and other eligible employees can also take up to 26 weeks’ additional paternity leave to care for a baby between 20 weeks and a year old, but only once the mother has returned to work (so if she does not return, they cannot take it). This is in addition to the two weeks’ ordinary paternity leave.

The qualifying conditions are the same for both types of leave, but fathers/partners must give eight weeks’ written notice before taking additional paternity leave. They must also provide a declaration that they are the father/partner of the mother and expect to have responsibility for bringing the child up. The mother must also provide a declaration that, among other things, includes the date she intends to return to work.

The leave must be taken in multiples of complete weeks (a minimum of two and a maximum of 26). Fathers/partners can only take one period of leave regardless of the number of babies born or adopted at the same time.

Statutory paternity pay

This is paid at a flat rate, which changes every April, or at 90 per cent of the employee’s earnings if they are lower than that.

To qualify for ordinary statutory paternity pay, the father has to satisfy the same criteria as for paternity leave, but must also have been earning more than the lower earnings limit for National Insurance in the eight weeks ending with the qualifying week.  This is the 15th week before the baby is due (or the week in which the adopter is notified of being matched).

To qualify for additional statutory paternity pay, the employee must have qualified for additional paternity leave and the mother must also have returned to work and stopped claiming any statutory pay or allowance.  She must also have at least two weeks left of her remaining entitlement.  This is paid at the same rate as ordinary statutory paternity pay and is limited to the mother or adopter’s statutory pay period.

Parental leave

Employees with one year’s continuous service are also entitled to 13 weeks’ unpaid parental leave per child up to their fifth birthday and unpaid parental leave of up to 18 weeks for a disabled child (if they are entitled to disability living allowance) to care for a child.  This will increase to 18 weeks from March 2013.

Parental leave is also available for adopted children and runs for five years from the date of the adoption or until the child’s 18th birthday, whichever happens first.

If there is no collective agreement in the workplace, a default scheme kicks in.  This states that parents can only take periods of leave in blocks of a week (unless the child is entitled to disability living allowance in which case that restriction does not apply). No employee can take more than four weeks’ leave per child per year.

Employees must give 21 days’ notice before they want to start the leave and must tell their employer the start and end dates when giving notice.

Under the default scheme, an employer can only postpone a request for parental leave on the basis that their business would be “unduly disrupted”.

They cannot postpone it indefinitely and must allow the employee to take the same amount of leave they requested within six months of the date of the original leave.

Employers cannot, however, delay the leave if that would clash with the day the baby is born or placed for adoption, or if it would mean that the employee would no longer qualify for parental leave (for instance the delay would mean it would start after the child’s fifth birthday).

If it is postponed, the employer must write and explain why, within seven days of the request, setting out the start and end dates to which they would agree a period of parental leave.

Employee rights

Employee rights during parental leave are limited to the contractual right to trust and confidence, notice, redundancy and discipline and grievance.

If an employee takes less than four weeks off, they have the right to return to their old job. If they take more than four weeks, their entitlement to have their job back is similar to the situation that applies to a woman returning from additional maternity leave.

An employee can complain to an employment tribunal if the employer unreasonably postpones a period of parental leave or has prevented or attempted to prevent an employee from taking parental leave.

The time limit for bringing a claim is three months less one day from the date of the matter complained of.

Flexible parental leave

The government announced in November 2012 that it intends to introduce something called (rather confusingly) flexible parental leave in 2015.  Additional paternity leave will be abolished when the new arrangements come into effect.

Under this system, working mothers will still have the right to 52 weeks of maternity leave, but can opt to share 50 weeks of the leave with their spouse/partner if they both meet the qualifying conditions.  They may take the leave in turns or take it together, provided that they take no more than 52 weeks in total and in blocks of a minimum of one week.

Although parents should, in theory, be able to decide how much leave they want to take, they will have to fall back on the default position of a single block of leave starting on a date specified by the employee if they cannot get their employer to agree to their proposal.

Women who qualify will be entitled to statutory maternity pay for 39 weeks of their maternity leave and fathers will be entitled to two weeks’ ordinary statutory paternity pay.  In addition, the government has said it will introduce statutory flexible parental pay for parents who meet the qualifying criteria that will replace additional statutory paternity pay.

However, the Chancellor’s cap on benefits, announced in the autumn statement, will amount to a cut in real terms in statutory maternity and paternity pay.

Fathers and other eligible employees will also gain the right to take unpaid leave to attend two antenatal appointments.

Adopters who meet the qualifying criteria will be able to take flexible parental leave, as will parents of children born through surrogacy.

Statutory adoption leave will be available from day one and statutory adoption pay will be brought into line with statutory maternity pay.