What is Paternity Leave?

Paternity leave is time qualifying employees can take off work to care for their newborn baby or following the adoption of a child.

Paternity leave is not an entitlement, as such it will be important to understand if it as available to you. You may also be eligible for paternity pay whilst you are on leave. To be eligible for paternity pay you must fulfil a separate set of requirements in addition to those outlined here.

Who is eligible for paternity leave?

To qualify for paternity leave, you must either:

• Be the baby’s father or the child’s adopter
• In the case of adoption, be the husband of the child’s birth or adoptive mother, or
• The partner of the mother or adoptive mother in same-sex partnerships.

You do not need to be the father of the child to qualify for paternity leave if you are in a long-term relationship with, or married to, the mother of the child.

Eligibility for paternity leave applies in the same way to same-sex marriages and partnerships where your spouse or partner is pregnant or you are having a baby via surrogacy or are adopting.

In addition to the above,you will also need to be an employee who has been continuously employed for at least 26 weeks up to the qualifying week and has given the correct notice.

What is continuous employment?

To qualify as continuous employment, you must have worked for the same employer without interruption. Sick leave, annual leave and moving between associated employers for example will not affect your period of continuous employment.

What is the qualifying week?

The qualifying week is the 15^thweek up until a baby is due, the week you are matched with a child if adopting, or the date the child enters the United Kingdom for overseas adoptions.

What is correct notice?

For notice to be correct, you must have told your employer when the child is due, how much time you want to take and when you want leave to start. You must do this before the qualifying week. If you aren’t able to tell your employer in time, you should discuss this with them as soon as you can.

Your employer may be able to delay your leave starting date if you provided late notice without a good reason. The employer must write to you within 28 days of your leave request if they wish to do this.

How much time off can I get for paternity leave?

Under the Paternity and Adoption Leave Regulations 2002, any eligible employee can take one or two weeks’ leave from work to care for a child or support the mother of a child. A ‘week’ is the same amount of days a week you would normally work. The period is fixed and does not increase for a multiple arrivals such as twins.

This leave must be taken consecutively and cannot be split up, however the decision to take either one or two weeks’ leave is yours.

You are also permitted to take unpaid leave to attend two antenatal appointments of up to six and a half hours each.

If you are adopting, you are allowed time off to attend two adoption appointments once you have been matched with a child.

You may also be entitled to take shared parental leave; however, you will not be able to take paternity leave after you have taken shared parental leave.

How do I apply for paternity leave?

You can apply for paternity leave by giving your employer the correct notice. To do this, you must complete the relevant form detailing the date the baby is due (or the matching and placement dates if adopting), when you would like your leave to start and whether you want to take one or two weeks’ leave.

Which form do I need to complete?

If the mother is giving birth to the child, you will need to complete form SC3, and you will need to return it to your employer prior to the 15^thweek before the baby is born.

If you are adopting, you will need to complete SC4 and give it to your employer within 7 days of the parent being matched with a child.

For overseas adoptions, you must use form SC5 and return it to your employer within 28 days of receiving the official notification from the UK authority that the adoption has been approved.

SC4 is also used for surrogacy arrangements but will need to be returned by the 15^thweek prior to the birth.

Do I need to give my employer anything else?

If you are using a surrogate to have a baby, your employer may request a written statement confirming you will be applying for a parental order. If your employer asks for this, it is important to seek legal advice as the signing of the document must be in the presence of a legal professional.

You are not required to provide proof of adoption if you are only applying for paternity leave. If you are applying for leave and pay, you must provide evidence.

What if the claim fails?

If you do not qualify for paternity leave, your employer must use form SPP1 to inform you within 28 days, providing the reasons why.

When can I start paternity leave?

Leave can only start on specific days, depending on your circumstances:

• On the day the baby is born
• For adoptions, on the date of, or an agreed number of days following the placement
• For overseas adoptions, the date the child arrives in the UK, or an agreed number of days following this
• For surrogate parents, the day the child is born or the following day if you are working that day

Your leave must finish within 8 weeks of the child’s birth, placement or arrival in the UK.

Are my employment rights the same while I am on paternity leave?

Your employment rights remain the same while you are on leave. For example, you will continue to accrue annual leave and changes such as pay rises, or other favourable changes to your terms and conditions of employment, will still apply during paternity leave.

Employment rights that are retained while on leave include:

• The right to be paid
• The right to return to work
• The right not to suffer detriment, discrimination or unfair treatment
• Keeping in touch days
• Protection of terms and conditions
• Redundancy

The right to be paid

Your right to be paid does not mean the right to be paid your ordinary wages but is the right to receive statutory paternity pay or contractual paternity pay where entitled.

The right to return to work

Where you have taken paternity leave, you normally have the right to return to the same job you were employed under when you left.

There are certain circumstances in which the employer may not need to place you back into the job you had if it is not reasonably practicable to do so, under section 13(2) of the Paternity and Adoption Leave Regulations 2002. This can occur where you have taken additional paternity leave or have taken a period of up to four weeks parental leave on top of your ordinary paternity leave

Where you have returned to work, you have the right to return with the same seniority, pension, and other similar rights as per section 14(1)(a) The Paternity and Adoption Leave Regulations 2002.

The right not to suffer detriment, unfair treatment or discrimination

Section 28 (1) of The Paternity and Adoption Leave Regulations 2002 confer protection from detriment as a result of the employers’ act or deliberate omission because of paternity leave. This includes acts or omissions based on the employee taking or intending to take leave.

For example, if your employer decides to promote another member of staff over you because they knew you intended to, or were planning to take paternity leave, this could be seen as unfair and detrimental under these provisions.

Section 29(1) of the same act protects against unfair dismissal due to paternity leave. Therefore if you can prove that the principal reason for dismissal is based on taking or intending to take paternity leave, you may have been unfairly dismissed.

Keeping in touch days

Where both you and your employer agree, you can work up to ten non-consecutive days, known as ‘keep in touch days’.

Terms and conditions protection

You have the right while on paternity leave for the terms and conditions of your employment to be protected. This means that all of your terms and conditions remain the same while you are off.

Redundancy

You retain the same redundancy rights as your colleagues while you are on leave, and are entitled to be offered suitable alternative roles if selected for redundancy.

What should I do if I think my employer isn’t following these rules?

Taking time off of work for paternity leave can make many feel apprehensive about their legal rights, and what they can do if they feel their rights aren’t being upheld. Seeking legal advice from an experienced employment law specialist can provide clarity on your situation and help you to take action if necessary.

If you think your employer has not met their requirements for paternity leave and your concerns cannot be solved informally, you can take steps to address the situation by raising a formal grievance. If you feel that your employer is discriminating against you by reason of your paternity entitlement, you should seek legal advice to understand your next steps.