FAQs: Paternity Rights Guidance for Businesses

1. One of your employees is gay and her partner is having a baby. Your employee wants to claim paternity leave. Is that possible?
2. Your employee doesn’t want to take paternity leave at the time of their baby’s birth but wants to be present at the birth itself. Can you refuse to give them the time off?
3. Is your employee entitled to take some time off after the birth of their baby?
4. Your employee’s partner earns more money than them, so your  employee has asked if it is possible for them to take some type of extended leave to care for the baby instead of their partner. Is that possible?
5. Can your employee split their paternity leave?
6. Your employee has worked for you for more than nine months. Do you have to pay them whilst they are on paternity leave?
7. Your employee is currently taking Shared Parental Leave but wants to return to work early. Do you have to allow this?
8. You have been told that only mothers can request ‘keeping in touch’ days and not fathers. Is this true?
9. Will your employee accrue holiday whilst on paternity leave?
10. What happens if you refuse to let your employee go on paternity leave?
11. You want to offer paternity leave but you are worried that it will affect your business financially. What can you do?
12. Your employee isn’t interested in taking Shared Parental Leave, but wants to work reduced hours in order to see more of their baby. Are they entitled to request this?

An increasing number of people are choosing to take paternity leave in order to care for a new arrival to the family or to provide support to their partners. As a responsible employer, you need to ensure you are up to speed on your employee’s rights to paternity leave or paternity pay. Read our FAQs on paternity rights below for more information.

One of your employee’s is gay and her partner is having a baby. Your employee wants to claim paternity leave. Is that possible?

Yes. Paternity leave is available to any of your employees who:

• have or expect to have responsibility for the child’s upbringing, including adopters
• are the biological father of the child or the mother’s husband or partner (including same sex relationships)
• have worked continuously for you for 26 weeks ending with the 15th week before the baby is due or the end of the week in which the child’s adopter is notified of being matched with the child
• give the correct notice

Your employee doesn’t want to take paternity leave at the time of their baby’s birth but wants to be present at the birth itself. Can you refuse to give them the time off?

Your employee is entitled to request Dependants’ Leave to attend the birth of their baby. They should do this as soon as their partner goes into labour to give you as much notice as possible. You must allow them to take ‘reasonable time off’ in order to ‘provide assistance’.

Is your employee entitled to take some time off after the birth of their baby?

If you have employed them for 26 weeks or more by the time of the 15th week before their baby’s due date, they are entitled to take one or two weeks’ Ordinary Paternity Leave. Ordinary Paternity Leave can be taken by your employee within 6 weeks of their baby being born. Your employee must give you notice in the 15th week before the due date that they wish to take the leave and that they wish to claim statutory paternity pay.

Your employee’s partner earns more money than them, so your employee has asked if it is possible for them to take some type of extended leave to care for the baby instead of their partner. Is that possible?

If your employee’s partner returns to work before the one year maternity leave has been exhausted then your employee may be entitled to apply for Shared Parental Leave. If eligible, your employee’s partner may be able to convert up to 50 weeks of their maternity leave and 37 weeks of their statutory maternity pay into statutory paternity leave and pay, and share it with your employee.

To qualify for Shared Parental Leave, your employee must have been employed by you for 26 weeks or more by the 15th week before the expected due date. Your employee’s partner, must have worked for at least 26 weeks and earned, on average, £30 a week in any 13 weeks out of the 66 weeks before the expected due date or matching date.

Your employee may need to submit up to five notices to you to book SPL, with the first notice of entitlement, intention, and booking, at least eight weeks before they want to take the first period of SPL.

Shared Parental Leave can be taken at any time from the date of birth to the day before the child’s first birthday.

Can your employee split their paternity leave?

Ordinary Paternity Leave (2 weeks) can be split over 6 weeks, but only in chunks of one week at a time. However, Shared Parental Leave (up to 50 weeks) can be split in up to three chunks.

Your employee has worked for you for more than nine months. Do you have to pay them whilst they are on paternity leave?

If your employee takes Ordinary Paternity Leave, you must pay them Statutory Paternity Pay. Depending on your employee’s employment contract, or your company’s paternity policy, your employee may be entitled to receive a higher rate of paternity pay.

If your employee takes Shared Parental Leave, they are likely to be eligible for Shared Paternity Pay. Some individuals who do not qualify for Shared Parental Leave, including agency workers, may still be able to access Shared Paternity Pay if they meet the definition of an employed earner for National Insurance contributions.

Your employee is currently taking Shared Parental Leave but wants to return to work early. Do you have to allow this?

If your employee is already taking Shared Parental Leave and wants to return early then they should give you at least six weeks’ notice of when they wish to come back to work. If they do not give six weeks’ notice – and where it is “not reasonably practicable” for you to welcome them back sooner – then you can require your employee to remain on Shared Parental Leave until the six weeks’ notice period has expired.

You have been told that only mothers can request ‘keeping in touch’ and not fathers. Is this true?

No. Anyone taking Shared Parental Leave is entitled to take up to 20 “Keeping In Touch” Days or “KIT days” too.

Will your employee accrue holiday whilst on paternity leave?

Yes. Your employee’s paternity leave should not be regarded as holiday and they will accrue holiday in the normal way while they are on paternity leave. If you do not let them accrue leave then this could mean your employee would have a “detriment” claim and possibly a claim under the Working Time Regulations.

What happens if you refuse to let your employee go on paternity leave?

It would be unlawful for you to subject your employee to a detriment because they take or are seeking to take any type of paternity leave. If necessary, your employee could bring a claim in an Employment Tribunal to recover compensation for their “injury to feelings”. If you dismiss an employee for taking any type of paternity leave, they would also have a claim for automatic unfair dismissal.

You want to offer paternity leave but you are worried that it will affect your business financially. What can you do?

You might be interested to know that most employers can claim back Statutory Paternity Pay and 92% of Shared Parental Pay from the government. In some circumstances, they can off-set against Employer National Insurance Contributions for other employees so that they are not left out of pocket, and some smaller employers can even get “loans” from HMRC to cover the amounts.

Your employee isn’t interested in taking Shared Parental Leave, but wants to work reduced hours in order to see more of their baby. Are they entitled to request this?

Your employee may be entitled to submit a Flexible Working Request – see our factsheet on flexible working. Men are entitled to have Flexible Working Requests considered in just the same way as women. If you do not take your employee’s request seriously and he thinks this is because he is male, then he may be entitled to bring a claim for sex discrimination. If your employee is in a same-sex relationship and you do not take this request seriously they may be entitled to bring a claim for sexual orientation discrimination.

Contact us today on 01273 609911, or email info@ms-solicitors.co.uk to find out how we can help you.