Additional paternity leave: a step closer to the statute books

An important part of the government’s package of reforms to family leave is the introduction of additional paternity leave and pay (APLP). Last summer, BERR consulted on how the system should be administered. It has now published its response to this consultation, which gives us a clearer idea of how the system will work in practice.

Although we refer to ‘fathers’ in this briefing, the right to APLP also applies to unmarried partners and civil partners of mothers as well as to adopting couples who are entitled to statutory adoption leave and pay.

• Whether or not a father is eligible for APLP will depend in part on the position of the mother/adopter – who will generally not have the same employer. This raises the question of how will you, the father’s employer, know if your employee is entitled to APLP. The government has decided that the least burdensome approach is for fathers to be asked to self-certify their entitlement. To discourage fraud, HMRC will carry out compliance checks and will be able to impose financial penalties.
• A father will have to apply for APLP at least 8 weeks’ before he intends to take the leave. You will then have 28 days in which to confirm whether or not he is entitled to take this leave. This mirrors the position of maternity leave.
• If the father then wants to change his plans, he will have to give at least 6 weeks’ notice to you (unless you agree that less notice is needed). If he gives less than this and you cannot reasonably accommodate the change, then you will have the right to insist that leave is taken on the previously agreed dates.
• When applying for the ordinary two week period of paternity leave, fathers currently have to complete an HMRC form, the SC3 (or provide the same information in a different format). For APLP, fathers will similarly have to provide prescribed information. HMRC are going to look at the current SC3 form to see if it can be adapted or if a new form is needed.
• A checklist will be available for employers to complete before deciding if a father is eligible for APLP. It will not be mandatory to use this checklist, although you will need to provide evidence that you have carried out particular checks.

What happens next?

The next stage of the process is for BERR to consult on draft Regulations. It hopes to implement these before the end of this Parliament (around 2010), along with the extension of SMP, Maternity Allowance and SAP.

Our comments

BERR clearly has more work to do on the detail of the processes involved. How successful these proposals are will depend on how the detail is fleshed out by the Regulations and how well the self-certificate form and checklist are drafted.

In the next few months, we will continue to put forward our views on this matter to BERR. In particular:

• BERR has not yet indicated whether or not Regulations and/or guidance will explain clearly to employers how they should deal with atypical situations.
• In our view, the self-certificate form needs a thorough overhaul to make it user friendly and accurate. A well drafted form could make it easier for an employer to decide if a father is eligible for APLP, as well as help to combat fraud.
• We are also concerned to see that employers are not put in the position of having to police the use of self-certificates.