Paternity leave changes

New rules allowing fathers to take up to 26 weeks' extra paternity leave come into force in April 2011. Solicitor Emilie Bennetts explains how companies should prepare themselves to administer the new regime.

THE PROBLEM

I have heard that from next year paternity leave provisions are changing and some employees will be allowed to take additional paternity leave when a child is born or adopted. What does the legislation say, and what is the likely impact on my business?

THE LAW

If a child is expected to be born or is matched for adoption on or after 3 April 2011, certain employees will have the right to take up to 26 weeks' Additional Paternity Leave (APL) as well as their current entitlement to two weeks' Statutory Paternity Leave, which will become known as Ordinary Paternity Leave.

Please note that although this article refers to "birth", the "mother" and "maternity leave", the position is very similar when a child is adopted.

The critical points to remember are:

• APL can be taken only if the mother of the child has returned to work with some of her statutory maternity leave untaken;

• 20 weeks must have passed since the birth; and

• APL must be taken within one year of the birth.

Subject to the above, APL can be taken by a qualifying employee who has, or expects to have, main responsibility - along with the child's mother - for the child's upbringing and is either the child's father or the mother's partner, civil partner or spouse.

The employee must have been employed by their current employer for a set period before the child is expected to be born (it does not matter if the child is born early) and must then remain with that employer until APL is due to start.

Employees taking APL will be entitled to a statutory rate of pay while on leave, provided that the mother has not used up her full entitlement to statutory maternity pay. Employers can increase this statutory entitlement if they wish.

Employees will have to notify their employers in advance if they wish to take APL and must make a declaration that they wish to take leave for the purposes of caring for the child. In addition, the mother of the child must make a declaration stating the date on which she intends to return to work and that there is no one other than the relevant employee who is entitled to take APL in respect of that child.

It is the responsibility of the employer to ensure that APL is correctly administered.

Employees who take APL will enjoy the same protections as those who take maternity or adoption leave, in that they will have a right to return to their job on the same terms and conditions and cannot suffer "detriment" as a result of their decision to take APL. If the employee is dismissed as a result of their decision to take APL, such dismissal will be automatically unfair.

EXPERT ADVICE

Employers should conduct a detailed review and update of their relevant policies and procedures - and, if maternity or paternity rights are contained in their contracts of employment, those contracts - to ensure that the new paternity rights are covered. They should consider carefully whether they wish to grant employees (or certain employees) rights that go beyond the statutory provisions.

They should also ensure that they have appropriate documentation in place to make sure that leave is correctly administered.

Any procedures and entitlements relating to APL should, as far as possible, mirror those which apply to employees taking maternity leave, so as to avoid the possibility of discrimination claims.

On a related point, it should be borne in mind that although the majority of those who will benefit from these provisions will be men, the class of individuals who have the right to APL is wide, and employers' policies should be drafted and implemented in a way that reflects this.

CHECK LIST

• Ensure that you review and, where necessary, update your existing contracts of employment and policies and procedures to take into account these new rights and any additional entitlements that you wish to grant.

• Ensure that any changes are communicated to employees - and that their consent is obtained to any contractual changes.

• Ensure that managers and HR and payroll staff are fully briefed.

BEWARE!

Remember that, as with those taking maternity leave, employees taking APL have a wide range of protection against less favourable treatment as a result of exercising their rights.

CONTACT

Emilie Bennetts is a solicitor at Charles Russell