New rights for working fathers

27/05/2010

By Nick Hobden, Partner and Head of Employment.

Since the late 1990s, the expansion in family friendly rights for employees has been considerable. Entitlements to maternity leave and statutory maternity pay have increased, parental leave has been introduced, as has adoption leave and the right to request flexible working arrangements. But until now, fathers have generally been restricted to taking only two weeks' paternity leave when their baby is born. All that is now due to change, in spite of the general election and the exit of the Labour government (they sneaked this through before calling the election). It would need the Conservative Lib Dem coalition government to reverse this legislation and both sides are committed to family friendly working arrangements.

The new right

This legislation gives fathers up to a further 26 weeks' Additional Paternity Leave (APL), as long as they have accrued 26 weeks' continuous service with their employer by the 15^th week before the expected week of childbirth. 

There are some fairly strict rules governing when a father can take APL.  It cannot start any earlier than 20 weeks after the birth of the child.  It must end not later than 12 months after the birth.  But perhaps the most significant limitation, however, is that it cannot start until the mother of the child has first returned to work herself.  So this new right does not allow parents to take maternity leave and APL at the same time.  In fact, in effect, it amounts to a limited right to transfer some of the mother's maternity leave entitlement to the father.

Before taking APL, a father must notify his employer of his intention to do so.  The notice given to the employer must be a minimum of eight weeks before the APL is due to commence.  Amongst other things, the notice must set out (i) the child's date of birth and (ii) the period of APL that the father wishes to take.  In addition, further written declarations must be made in order to confirm that the father is taking the leave to care for the child and the mother will have returned to work before the APL begins. 

What about pay?

If some of the APL is taken during the period for which the mother would otherwise have received Statutory Maternity Pay (had she not already returned to work), then that entitlement to pay will transfer to the father.  But otherwise the APL will be unpaid.

The potential for exploitation?

Concerns have arisen regarding the potential for people to exploit the system, with fathers asking to take APL when the mother is still at home or indeed more than one "father" attempting to take APL in respect of the same child. 

What should you be doing now?

Although the laws governing APL are already in force, the new rights will only apply to the parents of babies born on or after 3 April 2011.  That said, you may find that expectant mothers or fathers begin raising issues relating to these new rights from July onwards.  So you ought to consider reviewing your existing maternity and paternity policies, to make sure that they reflect the new law, otherwise they will be out of date from July onwards.  You should also bear in mind that the right to APL can apply not only to biological fathers, but also to adoptive parents (even two adoptive male partners) and the female or male partners of new mothers, even where they are not the child's natural father.

If you need more advice or assistance in relation to these changes to your policies and procedures, please contact a member of the Employment Team.