Under UK employment law, if you are an employee, you are entitled to certain benefits when you become a parent.  This article provides a rough guide to those statutory rights. Your employer cannot contract out of these rights and indeed your employer may even grant you rights which go over and above your statutory rights, so it is always worth reading your contract of employment (“contract”) and making yourself aware of the additional benefits which you may be entitled to receive with parenthood.

Looking at each of your basic rights in turn:

Paternity Leave

1.     As an employee you are entitled to paternity leave if you have or expect to have a responsibility for your baby’s upbringing and you are:
        the biological father of the baby; and/or
        the mother’s husband or partner.

2.    In addition, you must:
       have worked continuously for the same employer for 26 weeks ending with the 15th week before the baby is due; and
        from the 15th week before the baby is due up to the date of birth; and
        be taking time off either to support the mother or to care for the new baby.

3.     You can ONLY take paternity leave to care for your new baby or support the mother.

4.     You can choose to take either one week’s or two consecutive weeks’ paternity leave.  It cannot be taken as odd days or two separate weeks.

5.     You can only take one period of leave even if more than one baby is born as a result of the same pregnancy.

6.      Leave cannot start until the time of the expected birth of the baby. 

7.     You can choose to start your leave:
       on the date of the baby’s birth (whether this is earlier or later than expected);
       on a date falling such number of days after the date on which the child is born as you notify your employer; or
       on a chosen date as notified by you to your employer which falls after the first day of the expected week of childbirth.

8.     Paternity leave can start on any day of the week, as long as you have given your employer notice.  You can change your mind about when you want your leave to start as long as you give your employer the required notice.

9.     Leave must be completed:
        within 56 days of the actual date of birth of the child; or
        if the child is born earlier than expected, between the birth and 56 days from the first day of the expected week of birth.

10. You must tell your employer that you intend to take paternity leave by the end of 15th week before the baby is due or, if that is not possible, as soon as reasonably practicable.

11.  While on paternity leave, you are entitled to benefit from all those normal terms and conditions of employment which would have applied had you not been on paternity leave (except for terms in relation to
wages or salary).

12.  If you have a contractual right to paternity leave, as well as a statutory right, you are allowed to choose the option which is the most favourable to you.

13.  On return to work from paternity leave, you are guaranteed the right to return to the same job as before you went on leave and on the same terms and conditions of employment, unless a redundancy situation has arisen in this time.

14.  Under the law, you are protected from suffering a detriment or dismissal for seeking to take, or taking paternity leave.  If you believe that you have been treated unfairly, you can take your complaint to an Employment Tribunal. 

Statutory Paternity Pay (“SPP”)

1.     You may be entitled to SPP during paternity leave.

2.     To qualify you must be an employed earner (that is someone who is liable to pay the employer’s share of his Class 1 National Insurance contributions).

3.     You must have average weekly earnings at or above the “Lower Earnings Limit” for National Insurance which is £87 a week (as of 6 April 2007).

4.     To claim SPP (and/or take leave) you must tell your employer:
        the expected week of the baby’s birth;
        whether you wish to take one or two weeks’ leave; and
        when you want to start leave.

5.     In addition, to claim SPP, you must give your employer a signed declaration that you: 
        are taking leave to either care for your child or to support the mother or both;
        have or expect to have responsibility for the upbringing of the child; and
        that you are the father of the child/or the partner or husband of the  mother.

This declaration can be found in form SC3 “Becoming a Parent” and must be handed to your employer at least 28 days before you want SPP to start.

6.     You are not obliged to give your employer any medical evidence of the pregnancy or birth.
 
7.     SPP is paid weekly by employers for either one or two weeks depending on the amount of leave you have chosen to take.

8.     SPP is the same as the standard rate of Statutory Maternity Pay.  From 1 April 2007, SPP is now £112.75 a week or 90% of the average weekly earnings (whichever is lower). 

9.     SPP is treated as earnings, so an employer should make deductions (i.e. Income tax and NI contributions) that are due.  Employers can also deduct pension contributions or trade union subscriptions from SPP.

10.  SPP is a weekly payment due at the end of each SPP week.  SPP weeks can start on any day, therefore, if you start your leave on a Thursday for example, a week’s SPP runs from Thursday to the next Wednesday.

11.  In the case of multiple births, SPP is exactly the same as if there is one baby.

12.  If you do not qualify for SPP, you may be entitled to Income Support while on paternity leave.  Additional support may be available through Housing Benefit, Council Tax Benefit or Tax Credits.

13.  In the event that you do not return to work after paternity leave, you do not have to repay SPP to your employer.

14.  If you are entitled to contractual paternity pay and SPP and the contractual pay is more than SPP, your employer should top up the SPP to the amount of contractual paternity pay.

Say though that on completing your paternity leave, you realise need
more time with your baby, what can you do?

Parental Leave

• If you have completed one years’ continuous service with your employer, you have a right to take up to 13 weeks’ unpaid parental leave to care for your child in the period from the birth of the child to the child’s fifth birthday. You are entitled to take 13 weeks’ unpaid leave for each child that you may have. 
• In cases of adoption, you can take leave anytime in the five years from the date of placement of the child or up to the child’s eighteenth birthday; if that is sooner. 
• Parents of disabled children can take up to 18 weeks’ parental leave up to the child’s eighteenth birthday. 

The arrangements in relation to parental leave must be agreed between you and your employer.  However, where there is no agreement in place there are available a number of fall back provisions.  The fall back
scheme provides as follows:

-        you must take your leave in multiples of one week, except in instances where your child is disabled in which case you are entitled to take leave in blocks or in multiples of one day. 
-        In all cases, a maximum of four weeks’ parental leave may be taken in respect of an individual child in a year. 
-       You must give your employer a minimum of 21 days’ notice prior to taking leave. 
-       Your employer has a right to postpone your leave for up to six months’ if the leave is likely to unduly disrupt the business.  However, your employer cannot invoke this postponement when you give notice to take parental leave immediately after the child is born or is placed with you for adoption.

If your employer prevents or attempts to prevent you from taking parental leave, you are entitled to go to an Employment Tribunal.  If you choose to take parental leave you will also be protected from victimisation, including dismissal.

Flexible Working

Flexible working is your right to ask your employer for a variation of your contract of employment in order to care for young or disabled children. 

If you have the responsibility for the upbringing of a child; and/or

• are the parent (adoptive parent, foster parent or private foster carer) of a child under six, or under eighteen (where the child is disabled); and
• you have been employed by your employer continuously for a period of 26 weeks

you are entitled to request a variation of your contract in order that you may care for your child.

Changes which can be made in relation to your contract are, for example, to the number of hours which you work, the times which you work and/or your place of work.  Employers have a legal duty to consider all applications and establish whether the desired work pattern can be accommodated within the needs of the business. 

An application can only be refused where there is a clear “business reason”.  In the event that your request is refused you may only bring a complaint against your employer if your employer has failed to follow procedure.  There is currently no mechanism for providing you with a remedy for an employer who unreasonably refuses a request to work part-time, or who gives a reason which is different to one of those provided under the “business reasons”, although a Tribunal can order an employer to reconsider the application.  However, you have a statutory right not to be subject to a detriment or dismissal for making an application to request flexible working.  If you suffer unfair treatment you may be able to bring a complaint against your employer to the employment Tribunal.  

 Right to Time Off for Dependents

This is a right which allows you to take a reasonable amount of time off work to deal with certain unexpected or sudden emergencies.  All employees (regardless of length of service) are entitled to take a reasonable amount of time off to deal with an emergency which involves a dependent. A dependent is a husband, wife, child or parent of an employee.  It also includes someone who lives in the same household as you.  The legislation does not clarify the amount of time off which is “reasonable”: it will vary depending on the circumstances.  However, it is important to note that this right is only intended to be used in genuine emergencies.  You are not entitled to use this right to take two weeks off to care for a sick child (parental leave should be used for this purpose).  There is no limit on the number of times you can be absent from work under this right, but this right should not be abused.  This time off is also unpaid. 

Changes on the Horizon

In May of this year, the Government announced plans to increase paternity leave and pay and make it a more flexible benefit.  The consultation paper was entitled Additional Paternity Leave and Pay Administration (“APLPA”). APLPA will enable employed fathers to take up to 26 weeks additional paternity leave, some of which can be paid if the mother of the child has returned to work.  This new scheme will allow mothers to pass some of their statutory maternity leave entitlement (and pay) to fathers in the event that the mother wants to return to work during her statutory maternity leave entitlement.  The working father will be entitled to statutory paternity pay for the period of time which the mother has not claimed statutory maternity pay.  The Government’s goal is to implement this new scheme on or after 5 April 2009.

If you require any further information on any of the points raised in this article or feel that you have been unfairly treated at work, please contact  Anthony Thompson of Hextalls LLP.