Additional paternity leave - the important changes

27/04/2011

By Nick Hobden, Partner and Head of Employment

Since new legislation was passed last year, we have known that fathers' rights regarding paternity leave were set to change in a fundamental way. Well, the big day has finally arrived, and for any babies due on or after 3 April 2011, fathers will be able to take advantage of these new rights. So what new rights will they enjoy?

The rights

In addition to ordinary paternity leave (OPL), fathers will now be able to take additional paternity leave (APL). This allows a father to take continuous leave of up to 26 weeks at some point during the period starting 20 weeks after the date of birth and ending 12 months after that date.

There are a number of conditions a father must satisfy in order to qualify for APL:

• he must have been continuously employed for 26 weeks, as at the 15^th week before the expected week of childbirth;
• he must remain in continuous employment until at least the week before he begins his APL;
• he must have the main responsibility for bringing up the child (apart from the responsibility of the mother) and be taking time off in order to do so; and
• he must be the father of the child or be married to, or be the partner or civil partner of, the child's mother. This means that in fact paternity leave may be taken by a woman, as the same-sex partner of a mother or adopter.

In addition to these requirements, the baby's mother must have returned to work from a period of maternity leave before a period of APL can commence. This means that if the mother is unemployed, APL will be unavailable to the father. The effect of APL is essentially to allow the parents to 'share' their leave, so that the mother is transferring her maternity leave to the father to take as APL.

Action points

It is important for employers to decide upon a company policy for pay during APL. While some employers might have continued full pay during OPL, this is much less likely to be viable for APL. After all, it can last far longer. Employers need to be clear as to how they will deal with benefits for parents on APL as well. There is also a danger that if women on additional maternity leave are given benefits above the statutory minimum (such as back-to-work bonuses etc), then a man on APL could claim sex discrimination if he does not enjoy the same rights. This is by no means settled law but, given recent European cases, it is certainly a risk. We will have to wait and see whether litigation arises in due course in order to clarify the situation here.

Another consideration arises in relation to redundancies. It is reasonably well known that women on maternity leave are treated preferentially in redundancy proceedings; they are entitled to be given first refusal on any suitable available vacancies if their job is made redundant. This right will also apply to people on APL. If such rights are ignored, any subsequent dismissal will be automatically unfair.

The government has made it clear that APL is an interim measure, designed to pave the way for an even more flexible shared parental leave system to be introduced from 2015. Therefore it seems that the increased rights for fathers being introduced this month are only the start, and the principle of sharing parental leave is very much here to stay.