Fathers can now take up to six months' additional paternity leave by "borrowing" some of the mother's entitlement. Employment solicitor Anne Edwards explains
I am a restaurant manager. My sous chef has informed me that his wife is pregnant. Her baby is due in May 2007. He has told me that he wants to take more than the standard two weeks' paternity leave and I have to let him because the law has changed. Is he right?
The Work and Families Act 2006 came into force on 1 October. The act makes changes to our existing laws of maternity, paternity and adoption entitlement, and applies to children born or placed for adoption on or after
1 April 2007. The main paternity leave changes are as follows:
• Employees with parental responsibility will be permitted to take up to 26 weeks' extra paternity leave in addition to the standard two-week entitlement by using some or all of any unused maternity leave entitlement (12 months) from the mother.
• If an employee "borrows" a period of additional entitlement from the mother, then he must give eight weeks' (previously four weeks') notice before returning to work.
Paternity pay is currently £108.85 per week, or 90% of the employee's weekly earnings, whichever is greater. Paternity leave is granted to biological fathers and all those with parental responsibility only if he:
• Has at least 26 weeks' service by the end of the 15th week before the baby is due;
• Is fully involved in the child's care and upbringing; and
• Will support the mother or care for the baby.
The new paternity leave laws will be a greater administrative burden for employers because qualifying employees are now entitled to take up to 26 weeks' additional leave, some of which could be paid. It is estimated that up to 280,000 men will take advantage of the additional leave each year.
The new system is open to abuse where employees claim paternity leave but do not satisfy the last two requirements above - for example, if an employee took the additional paternity leave in order to work a second job, or where two people claim paternity entitlement to care for the same child.
Employers should familiarise themselves with the eligibility requirements for paternity leave and make sure these are satisfied. Request as much information as possible about the parental relationship and ask for additional evidence from reputable sources. Employees on paternity leave remain on your payroll, so any irregularities for tax and national insurance could be detected by HM Revenue & Customs if an employee was to take a second job. If you suspect any fraudulent behaviour, conduct informal investigations and report abuse to the relevant authorities.
• Make sure employees always follow the statutory procedures when wishing to take paternity leave.
• Make employees aware that they will lose their entitlement if they fail to give proper notice without good reason.
• Keep accurate records of all the periods of leave taken.
• Ask for supporting evidence for any additional entitlement which is claimed.
• Inform employees that leave might not be granted if they do not provide sufficient proof of entitlement.
• Consider taking disciplinary action in cases of dishonesty.
• Keep in regular contact with employees on leave.
Always request that the employee provides proof (from the mother's employer) that there is sufficient unused maternity leave entitlement before granting additional paternity leave.
Remember that these changes are statutory entitlements and employees can bring employment claims for discrimination, if they do not receive their entitlements. There is no upper limit to the compensation awarded in discrimination cases.
Anne Edwards, employment solicitor, Bracher Rawlins
020 7404 9400
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