Wake-up call: Paternity leave regulations

The Additional Paternity Leave Regulations were implemented in April, entitling fathers to take additional paternity leave in respect of children born after 3 April 2011. Solicitor Rebecca Strevens explains

THE PROBLEM
With the controversial announcement of child benefit cuts for higher rate tax payers comes a renewed focus on issues facing working parents and steps the Government can take to deconstruct outdated gender stereotypes and encourage women to return to work after childbirth.

In April 2010, the Additional Paternity Leave Regulations were implemented, entitling fathers to take additional paternity leave (APL) in relation to children born after 3 April 2011. The coalition Government has recently confirmed that the regulations will remain in effect as an interim measure designed to encourage shared parenting from an early stage. So, where does this leave employers of parents?

THE LAW
For simplicity, this article refers to biological fathers only, however the regulations apply to those who are married to the civil partner of or partner of the child's mother/adopter.

Currently, fathers who have responsibility for the child's upbringing may be entitled to statutory paternity leave (SPL). To qualify for SPL, employees must have a minimum of 26 continuous weeks' service with their employer prior to the 14th week before the expected week of childbirth. Provided that the primary purpose of the employee's absence from work is to care for the child or support the mother, an empl-oyee is entitled to take either one or two continuous weeks' SPL.

In addition to SPL - to be known as Ordinary Paternity Leave - eligible fathers will be able to take between two and 26 weeks' continuous APL to care for a child where the mother returns to work without exhausting her statutory maternity leave entitlement - though this must be taken before the child reaches its first birthday.

Employees will be eligible for APL much in the same way that they are entitled to SPL; however, APL cannot be taken before the child is 20 weeks old and employees must give employers eight weeks' notice to take APL.

Businesses that employ both parents should be aware that, depending on when both parents take their leave, it is possible for a couple to have 63 weeks' leave between them.

Fathers are entitled to additional statutory paternity pay only if the mother has not previously benefitted from her full entitlement to statutory maternity pay or allowance. The remainder of the mother's pay entitlement will transfer to the father in the event that more than two weeks of her entitlement remains.

EXPERT ADVICE
Aside from remuneration, the contractual provisions of an employee on APL will continue, including their entitlement to benefits. Employers should review any enhanced pay and/or benefits offered to women on maternity leave and consider whether to offer the same to employees on APL.

Pending the outcome of Alvarez v Sesa Start España ETT SA (C-104/09) at the European Court of Justice, it is arguable that employers who do not provide those on APL with the same benefits as mothers on AML are guilty of sex discrimination.

Equal treatment of the sexes in relation to employment and working conditions is a fundamental principle of EU law and differential treatment should only occur where there are clear biological differences which can justify such treatment.

BEWARE!
Employment tribunal claims could also arise:

Where an employee on APL is at risk of redundancy. Employees on APL are afforded the same protection as women on maternity leave if their position is at risk of redundancy; they should be offered suitable alternative employment, where such a vacancy exists. If no suitable alternative employment is offered and an employee is dismissed, employers are vulnerable to an unfair dismissal claim.â-

Where employees are subjected to a detriment as a result of them taking APL, seeking to take APL or making use of the benefits of APL. Detriment could, for example, be overlooking an individual for promotion, or failing to provide facilities or training where they would normally have been available. If an employee is successful in such a claim, the employer would be liable to pay compensation in an amount that is fair in the circumstances. CHECK LISTEmployers should:

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Carry out an audit of their policies to ensure they address the issue of APL and pay in a manner which fully informs employees of the entitlement, eligibility requirements and notification procedure.â-

Provide managers with training in order that they are fully aware of employees' right to take APL.â-

Ensure that staff involved in managing any redundancies are aware of the special status afforded to "at risk" employees on APL. CONTACT
Rebecca Strevens, solicitor, Charles Russell
rebecca.strevens@charlesrussell.co.uk