News & Publications - Employment
Maternity and Additional Paternity Leave – the right to share
5th Mar 2010
Changes to the arrangements for maternity and paternity leave are due to be introduced next month. The draft regulations have been published, and only the general election being called earlier than expected is likely to prevent them reaching the statute books. However, while these changes are being introduced this year, the right to share will only apply for children due on or after 3 April 2011. This will give employers time to adjust to these changes. Similar arrangements will apply to adoption leave based on the date of adoption.
Pregnant workers are entitled to 52 weeks’ maternity leave, during which they receive Statutory Maternity Pay (SMP) for the first 39 weeks only. From April 2011, mothers will be able to pass on up to 26 weeks of their statutory entitlement to maternity leave and SMP to the father of the expected child or their husband, partner, or civil partner, where this person is not the father but has or expects to have a joint responsibility with the mother for the upbringing of the child. This transfer of leave will be known as Additional Paternity Leave (APL). As with maternity leave, the entitlement is for one period and does not vary according to how many children the mother gives birth to. APL will be in addition to the current entitlement to statutory paternity leave and pay (SPP), in that the “father”is still entitled to up to 2 weeks’ statutory paternity leave and SPP, which must be taken within 56 days of the birth of the child.
The earliest an employee will be able to take APL will be 20 weeks after the birth of the child, and a maximum of 26 weeks can be transferred as APL. It must all be taken within 12 months of the child’s birth (i.e. the latest date on which the mother could have returned to work if she had taken her full maternity leave entitlement). APL must also be taken in a continuous block, and for the purpose of caring for the child.
However, an employee can only start APL once the mother has returned to work, and the APL can only be for the balance of the maternity leave entitlement that the mother has not taken (up to a 26 week maximum). As the mother has returned to work, payment of any remaining SMP entitlement transfers to the employee taking the APL. As APL cannot be taken until the mother has taken at least 20 weeks of maternity leave, any SMP will be paid at the flat rate currently £123.06 per week. If the mother takes 39 weeks of her maternity leave all of the SMP entitlement will be paid to the mother and the employee taking APL will not be entitled to any SMP.
The regulations set out details of the notice and evidential requirements that employees (both mother and her partner), will need to provide to their respective employers. As this will be a self certification process, there is the potential for abuse by employees. Employers may also wish to consider whether they require any further information in order to manage this right.
Employees taking APLwill also receive contractual protection during APL, and will continue to benefit from their standard terms and conditions of employment, subject of course to temporarily varied terms relating to pay whilst on APL.
Employers have been given plenty of notice of these changes so that they can begin revising and amending their staff handbooks and relevant policies to incorporate the changes, as they apply to both maternity and paternity leave. Employers who offer enhanced contractual terms for maternity and paternity leave should also consider carefully whether the changes impact on these entitlements. There may be an argument that if enhanced paternity pay is less than enhanced maternity pay, this would be discriminatory. It may be prudent to clarify any wording that is ambiguous.