Paternal instinct

A statutory paternity leave scheme was first introduced in 2003. It allowed eligible employees to take two weeks of paternity leave, with a fairly limited impact in practice.

There are mixed views on the success of the 2003 scheme. Some say it succeeded in giving new fathers the right to a sensible period of paternity leave and a modest amount of statutory paternity pay, without creating a significant burden on business. Others think that the scheme was so limited in impact that it achieved little. The take-up from fathers was mixed.

Many commentators felt the scheme served to reinforce existing gender stereotypes around the different roles of men and women in relation to work and careers, and the care and upbringing of children. It was argued that if, as a society, we wish to achieve true equality between the sexes at home and at work, then just as the law and policy needs to encourage women to combine work and families, it also needs to do so for men, and to create a more level playing field between the sexes in respect of family friendly employment rights.

Whereas women could take up to 52 weeks of maternity leave, men could only take two weeks of paternity leave. This inevitably perpetuated the tendency for women to take much longer periods of leave, which is widely seen as one of the root causes of inequality in the workplace '“ especially in the boardroom and in senior professional and management posts.

With these issues in mind, in 2005 the government began a process of consultation. It resulted in the introduction in respect of babies due on or after 3 April 2011 of the new right to take up to up to 26 weeks' additional paternity leave (APL), in some cases with an entitlement to additional statutory paternity pay (ASPP).

These rights have been designed to complement rather than replace the previous ones, which have been restyled 'ordinary paternity leave' and 'ordinary statutory paternity pay'.

These new rights apply much more widely than simply to biological fathers, to include spouses and partners (including same-sex partners) of mothers and adoptive parents. The rules are generally the same, irrespective of the nature of the relationship between the parents and whether they are the biological or adoptive parents of the child, with differences beyond the scope of this article.

Additional paternity leave

There are various requirements for qualification for APL, including length of service and having the main responsibility (apart from the mother) for the upbringing of the child. APL is only open to fathers whose wives or partners work. The mother must have returned to work before the father can take APL. The father must take the leave in order to care for the child.

There is confusion over what is meant by the mother returning to work. The government has issued unclear and contradictory statements on this issue during the consultation process and in official guidance. Its guidance suggests that a return to work means the mother has resumed working, with a period of annual, sick or parental leave directly after maternity leave not amounting to a return to work. However, it would be surprising if this was the case. Quite apart from the contradiction with its previous statements, this is not what the legislation appears to say; it provides that the mother is treated as having returned to work where her maternity leave has ended (which in law happens when a mother takes annual or parental leave).

The government's guidance for employers is also defective in stating that, in order for the employee to qualify for APL, the mother must return to work with at least two weeks of her maternity leave entitlement remaining. This confusion appears to have arisen out of the differences in the eligibility criteria for ASPP.

APL must be taken in blocks of continuous weeks. The minimum period is two weeks and the maximum is 26 weeks. It can be taken during a window starting 20 weeks after the birth and ending on the child's first birthday. Given that women can commence maternity leave 11 weeks before their babies are due, this means the maximum combined period of maternity and paternity leave is 63 weeks (slightly more if the baby is delivered late).

Subject to the point above regarding what constitutes a return to work by the mother, both parents will have available options to extend this via annual and parental leave. There could be a gap between the mother's maternity leave and the father's APL. There is no question that working parents now have greater flexibility in planning family leave on the birth of a new baby.

HMRC has produced checklists and forms to assist employers and employees with the new scheme. Responsibility rests with the father and mother to provide in writing to the father's employer relevant information and signed declarations from both of them, at least eight weeks before the APL starts. Essentially employees will self-certify for APL and ASPP. It was hoped this would ease the administrative burden on business.

Equally, the legislation gives employers some rights to check up on claims for APL and ASPP. HMRC has indicated it will carry out compliance checks, but there remains some concern regarding the scope for fraudulent claims.

Within 28 days of receipt of an employee's notice, the employer must confirm in writing the leave dates, although changes are possible in some circumstances; for example, if the mother changes her return date or decides not to return to work.

Broadly speaking, fathers who take APL will have the same strong legal protections against detriment, discrimination and dismissal as women who take maternity leave, as well as equal return to work rights, and priority over suitable alternative vacancies in a redundancy situation. They will remain entitled to all benefits, except normal remuneration. Unless the employer offers enhanced paternity pay, the only available remuneration will be ASPP (currently payable at a maximum of £128.73 per week).

Although the father's entitlement to APL is not dependent on the mother giving up some of her maternity leave, with ASPP it is different: for the father to qualify, the mother must return to work with at least two weeks of her statutory maternity pay (or allowance) period remaining. The father can then take up the mother's lost statutory pay. Given that the father cannot commence APL until the child is 20 weeks old, this means that ASPP is only available for up to 19 weeks. Typically it will be payable for a shorter period.

In total, there are 39 weeks of statutory pay available to both parents '“ if, for example the mother takes 30, there will be nine left for the father.

Predicted impact

The government predicts that initially between four and eight per cent of eligible fathers will take APL, with take up gradually increasing over time. The decision whether to take APL will not be an easy one for new fathers (or indeed their partners). Many will worry about a drop in earnings at a time of increased financial responsibility, as well as the possibility of longer-term adverse impact on the father's career. While the legal protection for fathers who take APL will be strong, it is questionable to what extent this will reassure them.

The new scheme will be of particular interest to couples in which the mother earns significantly more than the father. With women consistently outperforming men at school and university, among young professionals this is becoming far less common than in years gone by. If you take the case of an ambitious, high-flying female lawyer or banker, with a partner in a lower paid profession like teaching, the chance to take a fairly short period of maternity leave and then hand over the childcare to the father might be a good option for all the family.

As take-up of APL increases, it seems inevitable that some fathers will raise employment grievances and complaints of a similar nature to those raised by working mothers. There are bound to be cases of fathers who take APL and believe they are marginalised or disadvantaged as a result. For example, they may find their responsibilities are removed, they are passed over for promotion, or denied a pay rise. There will also be claims by fathers seeking enhanced paternity pay and return to work bonuses from their employers, where the employer offers these to women on maternity leave. The extent to which such claims are viable is unclear and test cases are anticipated.

The government has stated that the APL scheme is merely an interim measure and that it is going to launch a consultation on the introduction of an entirely new flexible system of shared parental leave by 2015. It is anticipated the consultation will propose radical changes, with controversy on the subject inevitable '“ particularly when you consider the government's wish to reduce red tape for business.