The Additional Paternity Leave Regulations 2010 came into force last summer and apply to parents of babies born or due (or due to be adopted) on or after 3 April 2011.  This is now only days away, and the babies in question are much more than a twinkle in their parents’ eyes.  Alastair Currie summaries the provisions and considers the practical implications for employers.

In this article...

The regulations

The Additional Paternity Leave Regulations 2010 (the Regulations) came into force on 6 April 2010.  The Regulations apply to parents of children due (and adoptive parents notified of a match) on or after 3 April 2011.

The Regulations give the right to take additional paternity leave (APL) to an employee who

  • in relation to the birth of a child, is the child’s biological father or the spouse or partner (of either sex) of the child’s mother; and
  • in relation to the adoption of a child, is the spouse or partner (of either sex), of the person who elected to take adoption leave following the adoption.

An eligible employee’s minimum entitlement to APL is to a period of leave between 2 and 26 weeks, which must be taken between 20 weeks after the baby’s birth (or placement for adoption) and 12 months after the baby’s birth (or placement for adoption), and after the baby’s mother has returned to work.

Similarly to maternity leave, employees may take up to ten ‘Keeping In Touch days’ during their APL without bringing the APL to an end.


Eligibility criteria for APL

The eligibility requirements for APL mirror those for ordinary paternity leave, but with the additional requirement that the mother or adopter must have returned to work without exhausting her maternity or adoption leave.


Employee’s evidence of entitlement to APL

The Regulations require employees to self certify that they are eligible for APL. An employee must give his employer written notice at least eight weeks before the start of his leave. This must be provided on the HMRC forms SC7 (for births), SC8 (for UK adoptions) or SC9 for (overseas adoptions).  Once the employer has received notice from their employee, they must confirm the employee’s start and end dates within 28 days.


Redundancy during APL

The scheme for employees who are made redundant while on APL mirrors that which applies to women who are made redundant whilst on maternity leave: if an employee is made redundant during APL, they are entitled to be offered any suitable alternative employment in priority to other employees.


Entitlement to ASPP

An employee will only be entitled to Additional Statutory Paternity Pay (ASPP) if the mother has returned to work without exhausting her entitlement to SMP or MA.  The total number of weeks of ASPP that an employee may receive will depend on the number of unused weeks of SMP or MA that were left when the mother returned to work, subject to a minimum of two weeks.

Should employers consider enhanced paternity pay?

One issue which employers will need to consider is whether or not they should provide enhanced additional paternity pay, to match any enhanced contractual payment during additional maternity leave. When consultation regarding APL and ASPP was undertaken by the Labour government, their opinion was that it would not be unlawful discrimination to fail to match enhanced benefits during additional maternity and additional paternity leave – but they did not say why!  One argument that could be run is that an employer may have a defence under section 13 of the Equality Act 2010, which sets out that it is not discriminatory to afford women ‘special treatment’ in connection with pregnancy or childbirth.

This has, however, been thrown into some doubt by a recent decision of the European Court of Justice, Roca Álvarez v Sesa Start España ETT SA. In this case, the ECJ said that preferential treatment of women in connection with pregnancy or childbirth should only be allowed where it protects the ‘special biological condition’ of the mother following childbirth. As APL and AML is ‘interchangeable’, to some extent, between parents, there is an argument that it is not a provision connected to the biological condition of the mother and, therefore, may be discriminatory.

That said, a further argument that may be run in defence of an employer who fails to match enhanced AML and APL is that APL can be taken by a parent of either gender.  Therefore, the correct comparator is not between a mother taking AML and a father taking APL but between employees of either gender taking APL.  Accordingly, there may be no discrimination provided that male and female employees taking APL are treated in exactly the same way.

The position is by no means clear. The safest approach is to ensure that any enhanced benefits are matched.  Alternatively, enhanced AML benefits may be revised downwards, but this would require careful handling.  If you choose not to match enhanced APL / AML benefits, then there would be an element of risk in doing so, and advice should be sought.


Practical steps

Requests for additional paternity leave are likely to start coming in soon so, if you have not done so already, you should

  • amend your paternity leave procedure
  • review any enhanced maternity benefits that you have in place and consider whether you will revise benefits either up or down or restructure your package as a whole
  • implement any changes in accordance with legal requirements and in consultation with employees; and
  • inform and train managers on the above.


Further information

The government has published guidance on additional paternity leave on the Business Link website.

There is also information about paternity leave on the Acas website.

You can download the government’s response to its consultation on the draft paternity here.

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