Paternity Pay and Leave entitlement
Any reference to the pregnancy or maternity or similar applies equally to the matching date of an adoption. Child birth and adoption are treated equally in the regulations
If you are a father to be or will share the responsibility with a partner for bringing up a child, you may have the right to Statutory Paternity Leave and Pay.
SPP and ASPP can be recovered in the same manner as SMP.
Ordinary Paternity Pay qualifications
Every employer has to make SPP payments, or payments of an equal or greater amount, to employees that qualify. There are certain professions that have different qualifying conditions, but for a normal every day business they are as follows.
Paternity leave is available to employees who:
- have or expect to have responsibility for the child's upbringing
- be the biological father of the child
- or the mother's husband or partner
- or the adopter's partner or spouse
- have worked continuously for their employer for 41 weeks before the expected birth date or adoption
- have average earnings above the NI Lower Earning Limit
Those who are eligible can choose to take either one week or two consecutive weeks' paid paternity leave (not odd days) which must end no later than eight weeks after the date of birth or adoption. If the employee elects to take only one week they are not allowed to take the second week at a later date.
An employee must inform their employers of their intention to take paternity leave by the end of the fifteenth week before the baby is expected, and it must include:
- the week the baby is due
- whether they wish to take one or two weeks' leave
- when they want their leave to start
Changing leave dates
Providing 28 days written notice is given the employee can change their mind about when they want to start the leave and when they want to return.
The rate for Paternity pay is the lesser of the flat weekly rate of £128.73 (2011-12) or 90% of average earnings for the eight week period prior to fifteen weeks prior to the expected date of birth or adoption date. If there has been a pay rise then the new rate is used. All payments are subject to PAYE tax and NIC and any usual deductions except for Attachment of Earnings and CSA Orders.
An employer has the right to ask for a self-certification form to confirm their eligibility for SPP and leave. Unless known to be a false statement the certificate must be taken at face value and no checks should be made.
Additional Paternity leave and pay
Additional paternity leave allows employee's who are eligible to take up to 26 weeks leave to care for their new baby. Leave can be taken any time from 20 weeks after the child is born or adopted, but it must have finished by the child's first birthday or within the first year of adoption. Additional Paternity Leave can only be taken once the child's mother or adopter has returned returned to work. Periods of annual leave, sick leave or parental leave which directly follows maternity or adoption leave will not count as a return to work.
Additional Paternity Pay qualifications
Additional paternity leave will only be available if the child is adopted or given birth to on or after 3rd April 2011
Additional paternity leave and pay may be available if
- you are the father of the child
- your wife, partner or civil partner is pregnant
- you are matched with a child for adoption
- the adopted child from overseas enters the UK on or after 3rd April 2011
- the child's mother is entitled to Statutory Maternity or Adoption Pay or Leave
To qualify for additional paternity leave and pay employers must receive notice in writing at least eight weeks before the start of the leave. This must include:
- the expected date of the baby's birth or date of notified of being matched for adoption
- the actual date of baby's birth, or placement of adoption
- the start date of the Additional Paternity leave and pay
- relationship to the mother
- leave is taken to care for the child
Recovery of payments
Statutory Paternity Pay (SPP) and Additional Statutory Paternity Pay (SPP)are all Social Security benefits and are funded by national insurance contributions, but that is not strictly true, your business could be funding a percentage of it.
Unlike SSP, where there is a type of sliding scale of recovery, it is possible to recover either 92% of your SPP and ASPP payments if your total Class 1 NI payments in the previous year were greater than £45k or 103% if you paid less than £45k Class 1 NI in the preceding year. It is recovered by deduction from your regular Revenue payments or by lump sum upon special request to HMRC.
Protection against unfair treatment or dismissal
It is automatically unfair for an employer to dismiss, or refuse to offer the old job back, or discriminate against an employee for paternity leave related reasons. The employee has a right to a written statement of the reasons for the dismissal. There is no minimum service requirement for these rights.
