Sharing Maternity Leave Entitlements
Additional Paternity Leave
Currently a new mother is entitled to six months' Ordinary Maternity Leave and six months' Additional Maternity Leave. An adoptive parent has the equivalent entitlement, but this can be taken by either adoptive parent. Under the new provisions, the Additional Maternity or Adoption leave, ie the latter six months of leave, may be transferred to the father/partner.
To be eligible for Additional Paternity Leave (APL), the father, or partner, must satisfy the same conditions as for Ordinary Paternity Leave. Therefore they must:
- Be continuously employed for a period of not less than 26 weeks as at the point of 15 weeks before the Child’s Expected Week of Arrival (EWC). In the case of adoptive parents, this will be 26 weeks ending with the week in which the child's adopter is notified of having been matched with an adoptive child;
- Be the father of the child or be married to, the civil partner of, or the partner of, the child's mother; or
- Have, or expect to have, responsibility for the child’s upbringing.
In addition, the mother or partner must have returned to work, and the earliest date which APL can begin is 20 weeks after the child’s birth (or placement if the child is adopted).
Fathers will have a choice as to the amount of APL they wish to take, and there is a degree of flexibility in how it is taken. It can be taken in a single block or in units of not less than two weeks providing that it is taken no later than the child’s first birthday. The father, or partner, will also be required to give his employer eight weeks' notice of intention to take APL.
Additional Statutory Paternity Pay (ASPP)
Importantly for employers, liability for Statutory Maternity Pay (SMP) and Statutory Adoption Pay (SAP) can also be transferred to the father’s employer as ASPP, providing the mother is eligible and the father satisfies certain financial criteria. ASPP will be payable for the number of weeks the mother or partner has left of their SMP or SAP entitlement. However, because SMP and SAP are both limited to 39 weeks, liability for the father’s employer will never exceed 13 weeks, as the mother/parent will have already received 26 weeks' pay during their ordinary leave period.
The amount paid will be the same as the lower rate of SMP, currently £124.88 per week.
The changes are designed to encourage partners to share child caring responsibilities more equally, and to benefit families where the mother earns substantially more than the father. However, in the government consultation paper on the draft Regulations the Department for Business Innovation and Skills estimated that the take up by eligible fathers will initially be fairly low, putting the figure at around 4% to 8%.
One of the main concerns for employers will be obtaining satisfactory evidence that the father/partner is entitled to the “transferred” leave. The system simply requires both parents to self-certify that there is leave available to be transferred and that they wish to do so.
The father’s employer can request to see a copy of the child’s birth certificate and must be provided with the name and address of the mother’s employer, but it may not always be straightforward to verify the information being provided. HMRC will, however, carry out random compliance checks and can impose financial penalties on anyone who abuses the system.
Just Employment Law will be pleased to help you amend your policies relating to Maternity, Paternity and Adoption Leave to take account of these changes to the law.