Home » Fathers Say

Fathers Say

New paternity/maternity rights for parents

After much delay, the Government has put in place a new law that will allow fathers up to 6 months paternity leave (‘additional paternity leave or APL’) in circumstances where mothers end their maternity or adoption leave early. Rachel Lester, a solicitor in the Employment team at Russell Jones & Walker (www.rjw.co.uk) , explains.

The new law will only apply to parents of babies due on or after 3 April 2011.

The Government’s stated intention is to give parents greater choice and flexibility in how they choose to look after their children, potentially enabling fathers as well as mothers to play a full part in the early months of their new baby’s life.

What are these rights and how will they work?

· Families will have the choice to transfer up to six months leave to the father should they want to, which can be taken by the father once the mother has returned to work;

· This new provision will be available during the second six months of the child’s life, giving parents the option of dividing a period of paid leave entitlement between them

· Some of the leave may be paid if taken during the mother’s 39 week maternity pay period and will be at the same rate as Statutory Maternity Pay (currently £123.06);

· All terms and conditions of employment which would have applied had the father been at work (except for salary), will continue;

· KIT (Keeping in Touch) days are expected to apply to fathers taking APL, in other words they can work for their employer during their APL for up to 10 days without bringing their APL to an end or losing their entitlement to statutory paternity pay;

· A father taking APL will be entitled to return to the same job on the same terms and conditions as before the APL began;

· Parents will be required to “self certify” by providing details of their eligibility to their employer. Employers and HMRC will both be able to carry out further checks if necessary.

When and how to Exercise these Rights

· According to the Government's proposals, the earliest a father will be able to take APL is 20 weeks from the date of birth of the child or the date of placement for adoption.

· Gaps between the end of statutory maternity leave or adoption leave and the beginning of APL will be permitted to enable families to have greater choice and flexibility.

· It is intended that the father will be required to give a minimum of eight weeks' notice of their intention to take APL. An employer will be required to confirm the father's entitlement to APL within 28 days of the date of their notification of their wish to take it.

Practical Consequences and potential problems

· The new rights only apply if the mother chooses to end her maternity leave early, and she returns to work with some of her statutory maternity leave untaken.

· Whilst fathers can potentially receive up to 3 months of the 6 months’ as paid leave at the statutory rate, the last 3 months will be unpaid. The same issues therefore that currently affect families in terms of assessing the affordability of taking the full 12 months maternity leave will still apply.

· Unfortunately, there seems to be little chance in the future of the Government making the financial choice for parents easier as the proposal to increase statutory maternity pay from 39 to 52 weeks is still on hold.

· A father may be reluctant to jeopardize his career in the face of an unsympathetic response from his employer.

· All of the issues therefore that currently affect a woman’s decision to take 12 months maternity leave will in all likelihood affect a man’s as well, perhaps to an even greater extent when taking into account traditional perceptions of the male role in the workplace.

· Bear in mind though that the law protects both men and women from being dismissed or subjected to a detriment for a reason related to any form of family leave, which includes both maternity and paternity leave.

The entitlements parents already have.

* note these are subject to qualification requirements in certain cases.

Mothers -

· An overall entitlement to 52 weeks maternity leave
· 39 weeks’ Statutory Maternity Pay or statutory maternity allowance
· 10 days KIT days during maternity leave.
· Up to 4 weeks’ per year unpaid Parental Leave, subject to a maximum of 13 weeks
· Leave to care for dependents in emergencies
· The right to request flexible working
Fathers -

· Up to 2 weeks’ Statutory Paternity Leave
· One week’s statutory paternity pay
· Up to 4 weeks’ per year unpaid Parental Leave, subject to a maximum of 13 weeks
· Leave to care for dependents in emergencies
· The right to request flexible working