Legal Ease

As briefly advised in our January Legal Ease, father’s of babies due on or after 3rd April 2011 and adoptive parents who receive notification that they have been matched with a child for adoption on or after 3rd April 2011, will have a new right to additional paternity leave. This allows fathers to take up to 26 weeks' paternity leave in the first year of a child's life.

An employee who qualifies for additional paternity leave will be able to take between two and 26 weeks’ additional leave in the period that begins 20 weeks after the child’s birth date or the child’s placement for adoption. An employee’s additional paternity leave must end by the end of the 52nd week after the child's birth or placement for adoption. However, in order to qualify for the leave, either the child’s mother’s period of maternity leave or the employee’s partner’s statutory adoption leave must have come to an end.

Additional paternity leave will be in addition to the current paternity leave entitlement that a qualifying father can take (up to two weeks which must be taken within 56 days following the birth of the child or the child’s placement for adoption).

The employer must be provided with at least eight weeks’ notice that the employee wishes to take the additional paternity leave.

Employees’ who qualify for additional statutory paternity pay will only receive payment during the time their partner is eligible for statutory maternity or adoption pay, or maternity allowance.
Employees taking additional paternity leave can work up to 10 ‘keeping in touch days’ on the same terms and conditions as a mother on maternity leave.

In order to be eligible for the additional paternity leave :
· The father must have been continuously employed with the employer for 26 weeks ending with the 15th week before the baby is due.
· The adopting employee must have been continuously employed with the employer for at least 26 weeks ending with the week in which they are notified of having been matched with the child.

Where the employee’s partner has given birth, the employee must give the employer two written declarations, one by the employee and one by the child’s mother. The employee’s declaration must state that:
· the purpose of the leave is to care for the child;
· the employee is the child’s father, or is married to, or the partner or civil partner of, the child’s mother; and
· the employee has, or expects to have, the main responsibility (apart from any responsibility of the child’s mother) for the upbringing of the child.
The mother’s declaration must state:
· her name and address;
· the date that she intends to return to work;
· her national insurance number;
· that the employee is the child’s father, or is the mother's spouse, partner or civil partner;
· that the employee has, or expects to have, the main responsibility (apart from any responsibility the mother has) for the upbringing of the child;
· that the employee is, to the mother's knowledge, the only person exercising the right to take additional paternity leave in respect of the child; and
· that she consents to the employer processing this data.
The employer can request that the employee provide a copy of the child’s birth certificate and the name and address of the mother’s employer (or her business address if she is self-employed).
Where the employee has adopted a baby, the employee must give the employer two written declarations, one by the employee and one by the child’s adopter. The employee's declaration must state that:
· the purpose of the leave is to care for the child;
· he or she is married to, or the partner or civil partner of, the adopter; and
· he or she has been matched with the child for adoption.
The adopter declaration must state:
· the adopter's name and address;
· the date that the adopter intends to return to work;
· the adopter's national insurance number;
· that the employee is married to, or the partner or civil partner of, the adopter; and
· that the adopter consents to the employer processing this data.
In addition, the employer can request evidence in the form of documents issued by the adoption agency showing: the name and address of the adoption agency; the date that the employee was matched with the child; and the expected date of placement. It can also ask for the name and address of the adopter’s employer (or the adopter's business address if he or she is self-employed).

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You should seek specific advice before taking any action based on the information contained in this document.While every care has been taken in compiling these notes, FirstHR cannot be held responsible for any errors or omissions; the notes are not intended to be a substitute for specific legal advice.