Employment Law experts
12th October 2016

As Father’s Day approaches we asked UK Dads “Have you taken Paternity Leave and/or Shared Parental Leave?”

Yes Paternity Leave – 38.5%

Yes Shared Parental Leave – 0%

Yes both – 7.6%

No – 38.5%

I didn’t know I could – 15.4%

The Modern Families Index 2016 report by Bright Horizons and Working Families says “Amongst younger parents, more equal sharing of work and care is happening in some households, although traditional gender roles around work and care remain powerful. Young fathers, in particular, have an appetite to be more involved with family life.”

An ELAS consultant says it’s up to employees to make the choice which is right for them. “Businesses should make sure all employees are aware of their paternity/shared parental leave rights by having proper policies in place and communicating these to employees when their partner is expecting.  Ultimately however, the choice is with the employee which – if any – form of leave they wish to take.

“Often taking leave means sacrificing a huge chunk of pay, so it is not so simple for employees to decide they will take a non-traditional approach if it means not even being able to afford to feed their newborn.”

Employers should have the following policies in place:

Paternity Leave

An employee is entitled to Statutory Paternity leave if they:

  • Are the biological father of the child or the mother’s husband / partner (including same sex relationships)
  • Have or expect to have responsibility for the child’s upbringing
  • Have worked continuously for their employer for 26 weeks by either the end of the 15th week before the expected week of confinement ( i.e. 15 weeks before the baby is due) or by the end of the week that they are notified that they have been matched with their child.

Employees and agency workers who are considered to be in a qualifying relationship for the purposes of this statutory right include:

  • A pregnant woman’s husband, partner or civil partner
  • The father of the child
  • The parent of the child
  • Intended parents in a surrogacy situation who meet specified conditions

Note – it is possible that a woman’s partner may qualify for time off even if he is not the child’s natural father.

Those who qualify for time off only have the right to attend TWO antenatal appointments (not all of them) and they can’t take more than 6 ½ hours for each one. The appointment must have been made on the advice of the registered medical practitioner, midwife or nurse.

While pregnant employees have a statutory right to reasonable time off work with pay to attend antenatal appointments, those in a qualifying relationship do not have a right to be paid.

The maximum duration for paternity leave is 2 weeks even if there are multiple children born, or more than one baby is adopted at once.

Leave cannot be taken prior to the birth. It must, however, be taken within 56 days of the birth and should be taken as either one week or two consecutive weeks. If only one week is requested the employee forfeits the second week.

Employees must be entitled to Paternity leave to qualify for Statutory Paternity Pay (SPP) and must earn enough. They will be entitled to £139.58pw.

An employee is obliged to give notice of their intention to take paternity leave before the end of the 15th week before the week the baby is due. They should specify the following:

  • The week the baby is due
  • Whether they are requesting one or two weeks of leave
  • The chosen start date

In practice, most employers will accept the chosen start date as ‘on the date of the child’s birth’ together with the week the child is due as sufficient. The employee must give further notice, as soon as reasonably practicable, of the actual date of birth.

Not less than 8 weeks before their chosen start date, employees must give you:

  • A written leave notice stating:
  • The EWC or the date on which they were matched with the child
  • The child’s date of birth
  • The dates on which they would like their APL to start and finish
  • A signed employee declaration confirming that:
  • They are either the child’s father or that they are the spouse, partner or civil partner of the child’s mother
  • Apart from the child’s mother, they have or expect to have the main responsibility for the upbringing of the child

These will usually be contained in the same letter.

Shared Parental Leave

This is a newer form of leave for all children born on or after 5 April 2015. It allows parents to share the leave between them either together or separately.

The man and woman need to decide who gets what payment and employers of both the man and woman will need to communicate with each other.

Parental Leave

Parental leave is available to all employees who have been employed for at least 1 year. It is unpaid. Employees must be the registered father or have parental responsibility for one of the following:

  • A child under 18
  • A disabled child under 18
  • An adopted child that has been placed with them who is under 18

The employee is entitled to take up to 18 weeks parental leave per child up to a maximum of 4 weeks per child in any one year. Leave must be taken in whole week blocks unless the child is disabled.

An employer may ask the employee to postpone leave for up to 6 months for business reasons, but not where the leave relates to the birth of a child or placement of an adoptive child. Business reasons may include:

  • Seasonal peaks
  • Busy spells
  • Inability to find replacement staff
  • Short staffing generally

Should the postponement request take the leave past the child’s 18th birthday or past the 18thbirthday of the adoptive child, the employee will still be able to take the leave at the end of the postponement period.

The leave must be intended to be used for the caring of the child, for example:

  • Viewing schools
  • Spending more time with them
  • Accompanying children in hospital
  • Arranging childcare

An employer can pursue disciplinary action should the leave be taken for purposes other than caring for the child, which might amount to gross misconduct, depending on the circumstances. Parental leave cannot be used for a golfing trip for example.

Employees are obliged to give 21 days notice of their intention to take parental leave, either orally or in writing, and must specify when the leave is to begin and end.

When the leave relates to the birth of a child or placement of an adoptive child, the employee notice must give at least 21 days before the beginning of the week the baby or the placement is due. Sometimes it is not possible to give this amount of notice, for example where there is a short notice match for adoption. In these circumstances the employee is obliged to give as much notice as possible.

If an employer wishes to postpone the taking of leave, they are obliged to give notice of this within 7 days of the notice from the employee being given.

Employers can ask employees to supply evidence of their entitlement to parental leave, which may include:

  • Child’s birth certificate
  • Medical evidence of child’s disability
  • Evidence of the date of placement
  • Evidence of their parental responsibility
  • Evidence of them being a registered father

Failure to supply this evidence and taking the leave without authority may result in disciplinary action which, depending on the circumstances, may amount to gross misconduct.


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