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Employment Law

Paternity Leave and Pay

Eligibility

Since April 2003 employees have had the right to claim paternity leave and pay. Throughout paternity leave employees’ employment rights are preserved, which means the employees right to pay, holidays and a secure job are protected.

To be eligible the employee must:

  • Be the biological father or be the mother’s (or adopter’s) husband/partner or be the adopter of the child themselves
  • Have responsibility for the upbringing of the child and be taking time off to look after the child
  • Have worked continuously for their employer for a minimum of 26 weeks by the end of the 15th week before the week of expected birth.

Statutory Paternity Leave

Employees can claim Statutory Paternity Leave (SPL) for either 1 or 2 consecutive weeks after the birth of the child and this is the same even where the mother gives birth to twins. The leave must be taken on the day of the actual birth of the child (irrespective of whether this is earlier or later than the expected date) or an agreed number of days or weeks after the birth of the child. The leave must end before 56 days after the birth of the child have passed, or if the baby arrives early then before the end of 56 days after the due date have passed.

Statutory Paternity Pay

Statutory Paternity Pay (SPP) is available to an employee who is on SPL for the period of 1 or 2 weeks, whichever the employee has chosen to take. The rate of SPP is the same as that for Statutory Maternity Pay. The rate is the lower amount of either £136.78 per week or 90% of their average weekly earnings. Employees must earn above the limit for National Insurance and Tax purposes to qualify for SPP and these will be deducted like normal from the pay. When requesting paternity pay employees must give notice of 28 days prior to when they want the pay to begin.

Employees may qualify for additional paternity leave and pay if their partner returns to work or if you provide a scheme offering it. Any paternity scheme offered by you in place of the statutory requirements must be equally or more beneficial to employees.

Employer’s Rights

Employees must give you notice of their intention to take paternity leave at least 15 weeks prior to when the baby is expected to arrive. Employees do not need to give notice in writing unless you request it and they must give notice of:

  • when the baby’s due date is
  • whether they intend to take 1 or 2 weeks statutory paternity leave, and
  • when they want the leave to start.

Employees can change the date on which they take their leave if they provide notice of at least 28 days. If an employee does not give the correct notice then you are entitled to delay the leave or pay start date by writing to them within 28 days of notice being given.

Adoption Rules

The rules for adoption differ slightly to the usual in terms of eligibility and the required notice periods.

To be eligible for paternity leave the adopter:

  • must have been in employment by you for a minimum period of 26 weeks by the end of the week that you were matched with the child for UK adoptions or for overseas adoptions either by the date they want to start receiving their paternity pay or the date the child arrives to the UK;
  • must confirm in writing that their partner is in receipt of statutory Adoption Pay; and
  • meet the other eligibility criteria for paternity leave and pay.

Employees adopting a child must provide notice of paternity leave within 7 days of their partner being matched with a child and 28 days’ notice before the date they want their paternity pay to start. To qualify for paternity pay the employee must provide you with proof of adoption and it must also be provided for paternity leave if you request it. The notice period for overseas adoptions is different.

Paternity leave can be taken on the date of placement with the adopted child, an agreed number of days after or for overseas adoptions on the date the child arrives in the UK or an agreed number of days after. The leave must be taken within 56 days of the child being placed with the employee for UK adoptions or within 56 days of the child’s arrival in the UK for overseas adoptions.

Reclaiming Paternity Pay

It is possible for employers to claim back 92% of SPP in the same way that Statutory Maternity Pay can be claimed back and in some cases small employers may be able to claim back all the pay. In addition, is you cannot afford to pay the SPP then you may be able to claim an advance payment from HMRC.

Employers may choose to offer more favourable paternity leave and pay packages but this is at their discretion and the law only sets down the minimum standards required. For bespoke paternity or employment law advice contact John Carruthers Solicitors & Solicitor Advocates.

For expert legal advice call now on: 0141 332 0915

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