The draft Additional Paternity Leave Regulations 2010
PPMA WEBSITE EMPLOYMENT LAW UPDATE February 2010 (1)
The draft Additional Paternity Leave Regulations 2010
As HR professionals will be aware, the Government announced some while ago its intention to provide parents with more choice and flexibility in how they use maternity and paternity leave by enabling new mothers to transfer the second 6 months of their 12 months maternity leave entitlement to the father. The Work and Families Act 2006 introduces a new entitlement for employees who are the fathers or partners of mothers or adopters to take additional paternity leave in the first year of their child’s life or the first year after the child’s placement for adoption.
The draft Additional Paternity Leave Regulations 2010 which will give effect to this new entitlement have now been published. They confer a right to take additional paternity leave, following the birth of a child, to fathers or spouses and partners (of either sex) of the child’s mother. In the case of adoption, the entitlement is granted to persons who have been matched with the child for adoption and who are spouses or partners (of either sex) of the adopter who has elected to take adoption leave.
The Regulations set out the conditions which will need to be satisfied, both by the person claiming the entitlement and by the mother or adopter. In particular, the claimant must have completed at least 26 weeks’ continuous employment and the father, spouse or partner must (apart from the mother) have or expect to have the main responsibility for bringing up the child.
The Regulations set out the notice and evidential requirements which will need to be complied with. Not less than 8 weeks before starting the additional paternity leave, the father, spouse or partner must give specified notices to his employer including a written declaration by the mother setting out various specified matters. These include:
• confirmation that he is the father (or is married to her or is her civil partner if he is not the father) and that apart from her he will have or expect to have the main responsibility for bringing up the child;
• that to her knowledge he is the only person exercising the entitlement to additional paternity leave in respect of the child concerned.
The Regulations also set out the options for when and how the leave may be taken, including the maximum and minimum length of such leave, i.e. a maximum of 26 weeks and minimum of 2 weeks. The leave may only be taken in multiples of complete weeks and must be taken within a specified period, i.e. the period beginning 20 weeks and ending 12 months after the birth or placement for adoption.
Statutory Maternity Pay (which will increase to £124.88 in April and which is payable for a total of 9 months) will effectively continue if part of that 9 months relates to the “transferred leave”. At the present time, men are entitled to two weeks paid paternity leave.
Although these Regulations will come into effect on 6 April 2010, the provisions outlined above will only apply in respect of children whose expected week of birth occurs on or after 3 April 2011. This is intended to give employers time to adjust to the new provisions. However, certain provisions, such as the right not to suffer a detriment by reason of exercising the new right and a related extension of the automatically unfair dismissal provisions contained within the Employment Rights Act 1996, will apply from 6 April 2010.
Most, if not all, public sector employers will already have in place comprehensive maternity, paternity and adoption policies and procedures and it will now be important to start planning for these new provisions. This will include reviewing existing arrangements to identify the changes needed, ensuring that there are clear processes in place for their implementation and administration and communicating this to managers and staff so that they are aware of the new entitlement and how it may be accessed.
The draft Regulations are available on the Office of Public Sector Information website at www.opsi.gov.uk
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