If you are an expectant father, or the partner of an expectant mother, and want to take time off work following the child’s birth, you will need to know your employment rights.
This guide examines the legal position for fathers or partners to be, including how much time off work you are entitled to, and what remedies are available in the event that your paternity rights are breached.
First, check you are entitled to take paternity leave
The first step is to confirm you are entitled to take paternity leave. Under the Paternity and Adoption Leave Regulations 2002 (as amended), an employee is entitled to time off work for the purpose of caring for a child or supporting the child’s mother, if that employee:
- has been continuously employed for a period not less than 26 weeks by the 15th week before the child is due or, if the child is born before then, would have been continuously employed for that period.
- is either the father of the child, or married to or the partner of the child’s mother (including same-sex partners), but not the child’s father.
- has, or expects to have, responsibility for the upbringing of the child.
Paternity leave is only available if you are an employee. Self-employed, agency, freelance or casual workers are not entitled to paternity leave, although they may still qualify for statutory paternity pay.
To qualify for paternity leave, you must continue to be employed by the same employer up until the period of paternity leave. You must also give your employer the correct notice in order to qualify, ie; at least 15 weeks before the child is due, together with your intended start date and the amount of time you will be taking off work.
How long is paternity leave and when can it be taken?
Under the regulations, an eligible employee may choose to take either one week’s leave or two consecutive weeks’ leave following the child’s birth. This is the same for multiple births.
Paternity leave may only be taken during the period beginning with the date on which the child is born, and not before. It must also be taken within 56 days following the child’s birth. You may choose to begin your period of paternity leave on any of the following:
- on the day your child is born
- a fixed number of days or weeks after the birth
- a fixed date after the first day of the week the child is due.
If the child is born before the expected week, paternity leave can be taken any time from the actual date of birth up to 56 days from the date the child would have been due.
If the child is stillborn after the 24th week of pregnancy, or if the child is born alive at any point during the pregnancy, even if the child later passes away, the employee is entitled to full paternity rights if they satisfy the eligibility criteria.
How long is paternity leave if I also take unpaid parental leave?
If you have more than one year’s service with the same employer, you may also be eligible to take unpaid parental leave. Parental leave allows you to take 18 weeks’ leave up to the child’s 18th birthday, although the limit on how much parental leave you can take in a year is 4 weeks – unless your employer agrees otherwise.
If you would like to take unpaid parental leave at the end of any paternity leave, you will need to give your employer 21 days notice, together with your intended start date. Your employer can only ask you to postpone your parental leave if it would cause undue disruption to their business.
How long is paternity leave – if I also take annual leave?
If you are unable to afford unpaid parental leave, you could instead submit a request for annual leave to coincide with the end of any paternity leave. This should be done in accordance with your employer’s annual leave policy.
Whilst your employer has the right to ask you to take your leave at another time, depending on their business needs, they must allow you to be able to use all your annual holiday in each leave year.
How long is paternity leave if I also take shared parental leave?
You may also be entitled to shared parental leave. This is where eligible parents can share any maternity leave in a way that best suits their needs in caring for the child. Once the mother of the child has made the decision to curtail her maternity leave, you will both need to decide how to divide this entitlement.
Shared parental leave can be taken at any time between the birth and the child’s first birthday. You can be off work at the same time as the mother for up to 6 months or, alternatively, stagger this leave so that one of you is always at home with the child in the first year.
This can create up to a maximum of 50 weeks’ shared leave for either of you to take. It can also be used in up to three separate blocks instead of taking it all in one go.
Whilst you can choose to take both paternity leave and shared parental leave, you cannot take paternity leave if you have already taken a period of shared parental leave. The period of paternity leave must come first.
When taking shared parental leave, you must give your employer not less than 8 weeks notice before the start date of the first period of leave.
What are my employment rights during paternity leave?
Whilst on paternity leave, your employment rights are protected. This includes your right to accrue annual leave and to return to the same job. As an employee, you also have the right to not be treated less favourably by your employer for taking, or proposing to take, paternity leave.
If you are dismissed, made redundant or treated unfairly because you have taken or are proposing to take paternity leave, shared parental leave or unpaid parental leave, you are protected from unfair dismissal or detrimental treatment from day one of your employment.
You should try to resolve any issues by raising the matter informally with your line manager or employer. You could also raise a formal grievance in writing. However, as a last resort you could consider making a complaint to an employment tribunal. Typically, there is a three-month time limit for bringing a tribunal claim from the date of the dismissal or discrimination.
Should I seek legal advice in relation to my paternity rights?
The answer to the question of “How long is paternity leave?” is not always straightforward and will differ for different people in different circumstances. Prior to planning what paternity leave to take, you may want to seek the advice of a specialist in employment law.
Your legal adviser will be able to advise you on what notice requirements you will need to give to your employer to be eligible for paternity leave, and when. In this way you will be able to maximise any time off work.
Moreover, if you find that your rights have been breached, not least where you have been unfairly treated as a result of taking paternity or shared parental leave, your legal adviser can discuss the options available to you – including bringing a tribunal claim.
The matters contained in this article are intended to be for information purposes only. This article does not constitute legal advice and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.