Fathers of children due on or after 3 April 2011 will be able to take the benefit of up to six months unused maternity leave.
If the regulations do come into force in April 2010, employers will have to wait another year before they take effect. However, given the media interest in this new legislation, employers and employees alike may wish to consider the issues sooner rather than later.
What is the new paternity leave and pay scheme?
Mothers of children due on or after 3 April 2011 will be able to transfer up to six months of their maternity leave to the father when they return to work.
The key points of the scheme are:
- an employee will qualify for additional paternity leave and pay (APLP)
- fathers will be able to take a maximum of 26 weeks of APL, which must be taken in a continuous block, starting no earlier than 20 weeks after the child is born and ending no later than the child’s first birthday
- there is no requirement for the father’s leave to begin directly after the mother returns to work, only that the mother has already returned to work before his leave begins
- the term ‘father’ will also cover partners and civil partners of mothers and adopters.
How will the scheme work in practice?
Parents will be required to ‘self-certify’ by providing details of their eligibility to their respective employers. There will be no requirement for the father’s employer to check with the mother’s employer that the mother is eligible for SMP or that she has returned to work.
If the father’s employer wishes to carry out further checks, it can request information on the mother’s employer from their employee. However, the regulations do not give the employer power to enforce the requirements that an employee provides the information or takes affirmative action in the event they fail to provide it. Employers may therefore have to rely on their disciplinary procedures in such cases. In addition, there is no obligation on the mother’s employer to provide any information on the mother.
What are the pitfalls or concerns for employers?
The government has tried to minimise the costs of administration: there is no obligation for a father’s employer to look beyond the self-certification of leave provided by the parents; and once an employer has calculated payment under ordinary paternity leave, this will not need to re-calculated for APL. However, there will clearly still be an additional administrative burden on employers due to the scheme.
Is it just a fuss about nothing?
Regardless of the numbers involved, employers will need to look at their policies. Unless resolved by legislation, it seems inevitable that fathers will consider potential discrimination claims if they are not receiving the same enhanced benefits as mothers. Furthermore, the new scheme may result in an increase in flexible working requests from fathers. If the legislation is implemented before the general election, which seems likely, the scheme does warrant further thought and preparation this year.