If you are planning to take time off work following the birth of your child or following adoption, you may be entitled to claim statutory paternity pay.
The amount of statutory pay you can receive usually changes with each tax year. For the tax year 2018-2019, if you qualify you are entitled to receive whichever is the lower of £145.18 per week or 90% of your average weekly earnings. It is paid in the same way as your wages are usually paid, and tax and National Insurance will be deducted.
Note that statutory paternity pay is different to paternity leave and will need to be claimed separately. Paternity leave is a period of either one or two consecutive weeks that fathers or partners can take off from work to care for their baby or child. If you take time off, you may also be entitled to either statutory paternity pay, or many employers offer a form of enhanced paternity pay as an employee benefit.
Are you eligible for Statutory Paternity Pay?
You may be eligible for statutory paternity pay, you must be taking time off work as either:
- The father of a new-born child (including surrogate birth)
- The adopter of a child
- The husband or partner (including same-sex partner) of the child’s mother or adopter
To qualify for statutory paternity pay, you must:
- Be employed by the employer up until the birth of the child
- Earn at least £116 per week before tax
- Be continuously employed by your employer for a minimum of 26 weeks up to any date in the qualifying week
- Submit form SC3 before the ‘qualifying week’ to your employer to satisfy the ‘correct notice’ requirement.
Correct notice means informing your employer of the date the child is due to arrive, how long you will be on leave and when you will take the leave. This needs to be given prior to the qualifying week.
The qualifying week varies depending on your circumstances, and would be either:
- The 15thweek before the birth of a child
- The end of 7 days following your match with a child for UK adoption, or
- The date the child comes into the UK or when you want your pay to start for overseas adoption
How do I claim Statutory Paternity Pay?
To make a claim for paternity leave you will be required to coplate and submit the relevant form before the relevant qualifying week ie. at least 15 weeks before the child is born, or within 28 days before you want your pay to begin if adopting. The form you need to complete will be determined by your circumstances:
- Birth parents should complete form SC3.
- Adoptive parents use form SC4 for UK adoptions, and SC5 for overseas adoptions.
- Parents within a surrogacy arrangement also use form SC4.
If you are adopting a child, you must also provide your employer with proof of at least 28 days before you want to start receiving paternity pay. This can be either a letter from the adoption agency or the official matching certificate.
Where you are part of a surrogate arrangement, your employer may ask for a statement confirming you will apply for a parental order in the 6 months following the birth of the child, which must be signed in the presence of a legal professional.
When do I receive Statutory Paternity Pay?
Statutory Paternity pay usually starts while you are on paternity leave, and when you claim Paternity Pay, your employer must confirm the start and end dates with you. If you want to change those dates, you must give your employer 28 days’ notice.
You are still eligible if you lose your baby either after birth or as a stillborn after 24 weeks.
What must my employer do?
Provided you meet the eligibility criteria, your employer will have to pay you the minimum legal amount for the duration of your leave. For example, even if your employer stops trading or you are made redundant, they may still liable to pay you Statutory Paternity Pay.
The circumstances in which your employer will be exempt from paying you are narrow, and could include instances where:
- You are in prison or taken into legal custody
- You start a job with a new employer during that period
- Your earnings were too low
- You have not been employed for long enough.
Your employer has the discretion to pay you Statutory Paternity Pay if you don’t tell them you intend to take paternity leave or do not provide the evidence required in time. They may be able to delay your paternity pay period if you do not provide them with a good reason for the delay.
If you are not eligible or no longer entitled, your employer must inform you of this and provide you with an explanation using Form SPP1 (Non-payment of Statutory Paternity Pay Explanation) within 28 days.
Your employer can refuse to pay you Statutory Paternity Pay if you get sick and are entitled to Statutory Sick Pay as you cannot receive both. Your employer must provide this explanation to you using Form SPP1 within 28 days.
If you decide to leave your job before the baby is born you will not be entitled to statutory paternity pay; however, if you decide to leave after the baby is born, you will still be entitled to receive it. You cannot be employed by another employer during that time.
What should I do if my employer isn’t following the rules?
Your employer is legally obligated to pay statutory paternity pay where you are entitled and are not exempt due to certain circumstances. They are also legally obliged to follow the correct procedure if you are not eligible.
If your employer doesn’t follow these rules, they are breaking the law. Therefore if you feel that your employer isn’t paying you what you are entitled to or has not followed the rules relating for example to informing you of non-eligibility, take legal advice from an employment law specialist who can help you to understand your rights.
If it is found that your employer has not complied with their duties, they may be issued a penalty of up to £3,000 by HM Revenue and Customs, and you may also be eligible to complain to an employment tribunal.
Employment law can be complex, particularly where disputes arise. Speaking to an expert employment law solicitor will help you to understand your legal position and can help advise you of the next steps should a dispute arise between you and your employer.