Plans are afoot to make significant changes to UK laws affecting the entitlement to paternity leave of those becoming Dads on or after 3 April 2010. For many, therefore, it is already too late to change plans but Naomi Flynn and Katharina Webber report regardless
From April 2010 it is intended by the government that the law regarding paternity leave and paternity pay is going to change substantially. The government's intention is that the new laws will have effect on parents of any children due on or after 3 April 2011. The current concern for employers is that the new laws could impose a significant administrative burden on employers, including in the marketing services industry (particularly on smaller agencies).
What is the current position?
Currently, all mothers are entitled to up to 12 months maternity leave. Subject to certain qualifying requirements, they are entitled to be paid statutory maternity pay ("SMP") for up to 39 weeks maternity leave. Fathers, on the other hand, currently have very limited rights. Subject to qualifying requirements, fathers are entitled to take up to just two weeks off within the period of 56 days after childbirth. During this period they are entitled to be paid statutory paternity pay (which is currently at the same rate as SMP).
Why the need for change?
The main aim of the new law is to give families more choice and flexibility to balance their work and family life. It is intended that if the law comes into force, fathers will be able to have a bigger role in the child's first month of life. In particular families will have the option of transferring up to six months of the mother's maternity leave to the father of the child.
What are the changes?
The key changes are intended to be as follows:
- Parents have the choice to transfer up to six months of the mother's maternity leave to the father in the second six months of a child's life. This is only allowed if the mother of the child has returned to work.
- Up to three months of the transferred leave will be paid at the same rate of the SMP (currently £123.06 per week or 90% of the employee's average earnings if this is less than £123.06). This will only be paid where the transferred leave is taken during the mother's 39 week SMP period.
- All of the rights applicable to the mother during maternity leave will also transfer to the father. For example the father could have the right to return from six months paternity leave to the same or a similar job as he had before the paternity leave.
- The parents will be required to "self certify" by providing their eligibility to their respective employers. (Employers and HMRC will both able to carry out further checks of entitlement if necessary.)
Why this matters:
This should be a positive move for families, as the "new generation of fathers" will have the chance to spend more time with their children due to statutory paternity leave, additional paternity leave, parental leave and flexible working regulations
However from an employer's point of view there are likely to be a number of organisational and administrative challenges that businesses will need to be aware of. Only time will tell if new fathers will take advantage of these opportunities or if the effect will, in practice, be insignificant as new mothers continue to use their full maternity leave entitlement.
Katharina Webber
Osborne Clarke, London
