Who’s left holding the baby?

New rules on paternity leave came into force in April 2011 which meant that mothers and fathers were legally entitled to share time off work during their baby's first year. Hot on the heels of the new rules, the government published a consultation on modern workplaces, which included proposals for reform in relation to flexible parental leave and flexible working. The consultation closed on 8 August and the government will respond later this year. So, let's look at the existing entitlements for fathers and the government's proposals to achieve its stated aim of enabling parents "to have greater choice and flexibility in their parental leave arrangements". (The term 'father' in this article is not limited to biological fathers but also includes the spouse or partner, male or female, of the child's mother.) The current position Since 2003, fathers with parental responsibility for a child (and meeting certain eligibility criteria) have had the right to take two weeks' paid paternity leave. From 3 April 2011, fathers with parental responsibility for a child have also been entitled to take up to 26 weeks' additional paternity leave ('APL') and receive additional statutory paternity pay ('ASPP') for some of that period. The current rate of pay (for paid paternity leave and ASPP) is the lesser of 90% of the employee's normal weekly earnings and the current prescribed rate of £128.73. The rationale behind APL is that mothers and fathers are now able to share the mother's maternity/adoption leave if the mother does not take her full entitlement of 52 weeks. A father's entitlement to APL is therefore contingent on the mother's entitlement to leave at all. If the mother does not work, the father will not be entitled to APL. To be eligible, a father must be continuously employed for at least six months ending with the fifteenth week before the week that the child is due, and must remain in employment until the start of APL. A father is only entitled to APL once the mother has gone back to work from statutory leave. Therefore if the mother goes back after six months, the father will be entitled to a maximum of six months' APL. If the mother goes back after seven months, the father will be entitled to a maximum of five months' APL, and so on. The earliest a father can take APL is 20 weeks after the child's birth (or placement for adoption) irrespective of when the mother goes back to work. It must also be taken as one continuous period and must be completed before the child's first birthday. A father is entitled to pay where the mother has not exhausted her entitlement to 39 weeks' statutory maternity/adoption pay or allowance. ASPP therefore lasts for a maximum of 19 weeks (because the earliest date that APL can start is 20 weeks after the child is born). All APL taken after the end of the statutory maternity/adoption pay period will be unpaid, unless the employer pays enhanced paternity pay. Employers must honour the statutory rights of fathers who apply for/take APL and must not subject them to a detriment for doing so. If they do, fathers can bring a claim in the tribunal. Employers can require fathers to give notice of their intention to take APL (at least eight weeks before the start of APL) and submit a declaration which satisfies the evidential requirements for entitlement (and may also require a declaration from the mother). Employers should therefore ensure that all policies are up to date and that managers are aware of these rights. The future The Federation of Small Businesses has criticised this "one-size-fits-all approach" and the additional administrative burden for employers. On the other hand, a report conducted recently by think tank Demos found that, despite the new rules, only one in 10 fathers will take more than two weeks off work, which essentially reinforces the gender pay gap. The government's consultation on modern workplaces proposes a new flexible system of shared parental leave to be introduced in 2015, which would potentially provide a father with an additional four weeks' paid leave. The consultation also proposes to extend the right to request flexible working to all employees, not just to those with children under the age of 17. WM will report on any developments as they arise. Sara Sawicki is a partner at law firm Pinsent Masons: www.pinsentmasons.com