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Law Guide

Ordinary paternity leave

Contents

Ordinary Paternity leave - births

Qualifying for ordinary paternity leave

An employee qualifies for statutory ordinary paternity leave (OPL) on the birth of a baby if they are:

  • The biological father of the baby and have or expect to have responsibility for the baby's upbringing
  • Not the child's biological father but the mother's husband or partner (including same-sex partner or civil partner) and have or expect to have the main responsibility for the child (along with the mother). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.
In addition, they must:

  • Have at least 26 weeks' continuous employment with you (length of service) ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week
  • Be working for you from the qualifying week up to the date of birth. If their contract ends before the birth, they do not qualify for leave - unless they go on to work for an associated employer. If their contract ends after the birth, they retain their right to leave (and statutory ordinary paternity pay if they qualify)
  • Have notified you of their intention to take OPL
  • Be taking the time off to support the mother and/or care for the baby
The EWC is the week in which the expected date of the baby's birth falls starting with the preceding Sunday and ending the following Saturday.

An employee will still be entitled take statutory ordinary paternity leave in the following situations:

  • Provided they have 26 weeks' service by the 14th week before the EWC, they retain their entitlement to OPL even if the baby is born early and they do not have 26 weeks' service at the time of the birth. This is because their entitlement is determined by the date of the EWC, not the actual date the baby is born.
  • If the employee's wife or partner gives birth to a stillborn baby after 24 weeks of pregnancy. (If the stillbirth occurs before the end of the 24th week of pregnancy, you could allow the employee to take sick or compassionate leave instead.)
  • If the baby is born alive but then later dies.
Employee notification of ordinary paternity leave

Employees must give their employer the required notice in order to qualify for OPL. You can request that this be provided to you in writing for your records.

When notice should be provided

Notice should be provided to you no later than the end of the 15th week before the EWC.

If the notice is provided late then you are not under any obligation to accept the notice, unless it was not reasonably practicable for the employee to notify you in time (e.g. the mother of baby did not realise she was pregnant). If this is the case, the employee must still provide you with the notice as soon as it is reasonably practicable for them to do so.

What information should be included

The notice should provide:

  • The expected week of the baby's birth (this is usually the first Sunday of the EWC)
  • Confirmation of how much leave they wish to take, namely one or two weeks
  • When they want their leave to start
The employee does not have to give you any medical evidence of the pregnancy. You do not have to give the employee confirmation of the end date of their paternity leave.

You can also request the employee to provide a written declaration stating that he satisfies the conditions that entitle him to take paternity leave and that he will be taking the time off to support the mother and/or care for the baby.

Notice of birth

In addition, the employee should provide you with a further notice as soon as reasonably practicable after the birth of the child of the date when the child was born. Once again, you can request the employee to provide this notice in writing.

The start and duration of ordinary paternity leave

Eligible employees can choose to take either one or two whole weeks' ordinary paternity leave. They cannot take it as odd days or as two separate weeks.

The duration of leave remains the same regardless of the number of children resulting from a single pregnancy.

An employee cannot start their leave until the birth of the baby. Otherwise, an employee can choose to start their OPL:

  • On the actual date of the baby's birth (whether earlier or later than expected)
  • On another date they have chosen falling on a specified number of days after the actual birth date (whether earlier or later than expected)
  • On the first day of the EWC (If the baby is born later than this date, they must delay their leave until the date of the actual birth.)
If an employee specifies the date of birth as the day they wish to start their OPL and they are at work on that day, their leave will begin on the next day.

As long as the employee has given the required notice, their OPL can start on any day of the week. However, their leave must finish:

  • Within 56 days of the actual birth date
  • If the child is born earlier than first day of the EWC, within 56 days from the first day of the EWC
Changing the start date of leave

The employee can change the date when they want their OPL to start so long as they give you the following notice which you can request that they give to you in writing:

  • If they want to change their leave so it starts on the date of birth, at least 28 days before the first day of the EWC
  • If they want to change their leave so it starts on a particular date, 28 days before that date
  • If they want to change their leave so it starts a specified number of days after the birth, at least 28 days of the expected start of their leave. For example, if the employee wants to start their leave 14 days after the birth and the EWC begins on 16 July, this means that the expected start date of their leave is on the 30 July and they must give you 28 days' notice of this date, i.e. by 2 July
Please note that in the case of the last option, if the date when the employee's leave starts turns out to be different (as the date that the child is actually born differs from the EWC) then the employee will not be required to provide you with a new notice.

Where an employee has chosen to begin their period of leave on a particular date and the child is not born on or before that date then they must vary their choice of start date using one of the above-mentioned options. In these circumstances, the employee should:

  • Discuss the situation with you as soon as possible
  • Give the appropriate notice to change the start date
If it is not reasonably practicable for the employee to give you this notice in time, then it should be given to you as soon as it becomes reasonably practicable to do so.

Ordinary paternity leave - adoptions

Different rules and criteria apply depending on whether the employee or their partner is adopting a child from the UK or from overseas.

Ordinary paternity leave - UK adoptions

Qualifying for statutory ordinary paternity leave (OPL)

An employee qualifies for OPL when adopting a child from the UK if they:

  • Are either one of two parents jointly adopting a child or married to or the partner of the person adopting the child
  • Have or expect to have responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter
  • Are not taking statutory adoption leave and pay
  • Have been continuously employed by you for at least 26 weeks ending with the week in which they are notified of having been matched with the child
  • Continue to work for you up to the date of the child's placement
  • Will be taking time off for the sole purpose of supporting the adopter and/or to care for the child
When must they provide notice?

An employee must notify you when they want to take OPL no more than seven days after the adopter is notified that they have been matched with a child. This is the date that the adoption agency notifies the employee of the details of a child that they believe is suitable for adoption. This is known as the 'match date'.

Contents of notification

To qualify for OPL an employee should notify you of their intention to take ordinary paternity leave and specify:

  • The match date
  • The date on which the child is expected to be placed (start living) with the employee (the expected date of placement or EDP)
  • The date when the employee wants to start their leave
  • How much leave they want to take
If it is not reasonably practicable for the employee to provide the notice by the required time then you should be notified as soon as it is becomes reasonably practicable for the employee to do so.

You can request the employee to provide this notification in writing.

You can also request the employee to provide a written declaration stating that they satisfy the conditions that entitle them to take paternity leave and that they will be taking the time off to support the child's adopter mother and/or care for the child.

You do not have to give the employee confirmation of the end date of their OPL.

Notice of placement

In addition, the employee should provide you with a further notice as soon as reasonably practicable after the child's placement, of the date on which the child was placed. You can request the employee to provide this notice in writing.

The start and duration of ordinary paternity leave

Eligible employees can choose to take either one or two whole weeks' statutory ordinary paternity leave. They cannot take it as odd days or as two separate weeks.

The duration of OPL remains the same regardless of the number of children that are being adopted in a single adoption (e.g. adopting twins).

OPL can begin any time from the date of the child's placement with the adopter but must be completed within 56 days of this date.

The employee can choose to begin their OPL on one of the following dates:

  • The date on which the child is placed with the adopter, even if this is earlier or later than the EDP (If the employee is at work on that date, their leave begins on the day after)
  • Another date chosen by the employee that takes place after the EDP
  • A date falling a specified number of days after the EDP
Changing the start date of leave

The employee can change the date when they want their paternity leave to start so long as they give you the following notice which you can request that they give to you in writing:

  • If they want to change their leave so it starts on the date the child is placed with the employee, at least 28 days before the first day of the EDP
  • If they want to change their leave so it starts on a particular date, 28 days before that date
  • If they want to change their leave so it starts a specified number of days after the placement date, at least 28 days of the expected start of their leave. For example, if the employee wants to start their leave 14 days after the actual placement date and the EDP begins on 16 July, this means that the expected start date of their leave is on the 30 July and they must give you 28 days' notice of this date, i.e. by 2 July.
Please note that in the case of the last option, if the date when the employee's leave starts turns out to be different (as the date that the child is actually placed differs from the EDP) then the employee will not be required to provide you with a new notice.

Where an employee has chosen to begin their period of OPLon a particular date and the child is not placed with the employee on or before that date then the employee must vary their choice of start date using one of the above-mentioned options. In these circumstances, the employee should:

  • Discuss the situation with you as soon as possible
  • Give the appropriate notice varying the start date
You are not under any obligation to accept notice of a change of date if you are not given the correct amount of notice (although you can use your discretion to choose to do so). However, if it is not reasonably practicable for the employee to give you this notice in time, then it should be given to you as soon as it becomes reasonably practicable to do so.

Ordinary paternity leave - overseas adoptions

Qualifying for ordinary paternity leave (OPL)

An employee qualifies for OPL when adopting a child from overseas if they:

  • Are either one of two parents jointly adopting a child or are married to or the partner of the child's adopter
  • Have or expect to have responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter
  • Are not taking statutory adoption leave and pay
  • Have worked for you continuously for at least 26 weeks ending with the week that the adopter receives 'official notification' or by the time they want their OPL to begin, whichever is later and continue to work for you up to the date of the child's entry into the UK
  • Will be taking time off for the sole purpose of supporting the adopter and/or to care for the child
  • Have given you the correct notification
Official notification is written notification issued by or on behalf of the relevant domestic authority (usually the Department of Education) that the authority either:

  • Is prepared to issue a certificate to the overseas authority dealing with the adoption of the child
  • Has issued a certificate and sent it to that authority
In either case, the notification certificate confirms that the other or main adopter:

  • Is eligible to adopt
  • Has been approved as being a suitable adoptive parent
Contents of notification

To qualify for OPL, an employee should notify you of their intention to take ordinary paternity leave and specify:

  • The date on which the other or main adopter received the official notification
  • The date on which the child is expected to enter the United Kingdom
  • The date upon which the employee wants to start their leave
You can also request the employee to provide a written declaration stating that their partner or spouse has received an official notification and confirming that they are married to or the partner of the child's adopter and have or expect to have responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter. This should be provided to you within 14 days of your request.

You do not have to give the employee confirmation of the end date of their OPL.

When must they provide notice?

Where the employee already has the necessary 26 weeks' qualifying service when the adopter receives the official notification, they must give you the above information within 28 days of the adopter receiving the official notification. At this point, the employee should know roughly when the child will enter the country.

Where the employee receives the official notification before they have the necessary qualifying service, they must give you notice within 28 days of completing the 26 weeks' qualifying service. Again, at this point, the employee should know roughly when the child will enter the country.

Notice of entry

A further notice will be required after the child has entered the United Kingdom. The employee must tell you the date when the child entered the UK within 28 days of the child's date of entry.

You can request the employee to provide this notification in writing.

Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering the United Kingdom and that the adoption is not going ahead.

The start and duration of ordinary paternity leave

Eligible employees can choose to take either one or two whole weeks' statutory ordinary paternity leave. They cannot take it as odd days or as two separate weeks.

The duration of OPL remains the same regardless of the number of children that are being adopted (e.g. adopting twins).

OPL can begin any time from the date of the child's entry into the UK (the date of entry) but it must be completed within 56 days of this date.

The employee can choose to begin their OPL on one of the following dates:

  • The date of entry
  • Another date chosen by the employee which takes place after the date of entry
Changing the start date of leave

Employees can change their mind about the date on which they want their leave to start provided they tell you at least 28 days in advance of the new date.

Contractual issues during ordinary paternity leave

An employee's contract of employment continues throughout OPL unless either you or the employee expressly ends it or it expires.

Terms and conditions during OPL

During OPL an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except for the terms relating to wages or salary.

Examples of contractual terms and conditions that continue during OPL include:

  • Gym membership
  • Participation in share schemes
  • Reimbursement of professional subscriptions
  • The use of a company car or mobile phone (unless provided for business use only)
Continuous employment and paternity leave

OPL counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, e.g. the right to a redundancy payment.

It also counts towards assessing seniority and personal length-of-service payments, such as pay increments, under the contract of employment.

Accrual of annual leave

An employee continues to accrue statutory - and any contractual - annual leave entitlement throughout SPL.

An employee may not take annual leave during ordinary paternity leave - but may take it immediately before or after ordinary paternity leave.

Contributions to an occupational pension scheme (OPS)

For the purpose of pension rights, during paternity leave an employer should maintain its contribution to an OPS. The employee must continue to pay their pension contributions if the pension scheme rules require them to do so. An employee will not have to make any contributions towards their pension during any period in which they are not receiving any statutory ordinary paternity pay. However, they may still make voluntary contributions if the pension scheme rules allow them to do so.

Returning to work from ordinary paternity leave

An employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent on OPL.

They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they were away.

An employee returning to work may make a request to work flexibly, e.g. to work from home or do part-time hours.

Additional paternity leave (APL)

In April 2010 new regulations come into force which entitle eligible fathers or partners of mothers and adopters to take additional paternity leave of up to 26 weeks (in addition to the two weeks that they are already entitled to) during the first year of the child's life (or the first year after the child's placement for adoption).

The right to take APL only applies to babies whose expected week of birth is on or after 3 April 2011 or, in the case or adopting parents, if they are notified that they have been matched with a child (for UK adoptions) or have received official notification (for overseas adoptions) on or after 3 April 2011.

APL can only be taken once the mother or adopter has returned to work and the child is over 20 weeks old (or, in the case of adoption, has been with its adoptive parents for 20 weeks).

A number of requirements must be satisfied in order for an employee to qualify to take APL, including that the mother (or adopter) has not taken their full entitlement to maternity (or adoption) leave and that they have, or are about to, return to work. Certain other criteria, such as providing minimum notice periods and a written declaration for employers containing compulsory information, will apply.