Being Dad

Paternity leave rules for dads

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Written by Tim Barnes-Clay

As of 6 April 2011, changes to the Paternity Leave rules came into force for the first time allowing fathers the opportunity and choice to stay at home with their children without giving up work.

Solicitors Simon Cuthbert and Jasmine van Loggerenberg of leading employment law firm Russell Jones & Walker, who are both parents with young children, examine how these changes will impact on fathers in the work place.

Previously an employee who is eligible for paternity leave would have only be entitled to take up to 2 weeks statutory paternity leave. The leave must have been taken in blocks of 1 week within 56 days from the date of the baby’s birth. However, fathers/carers of babies due on or after 3 April 2011 became entitled to take additional paternity leave (APL) of up to 26 weeks (6 Months). The new laws came into force on 6 April 2011.

The new laws don’t allow for both parents to take time off together and APL can only commence once the child’s mother has returned to work from maternity leave. The earliest APL can begin is when the child is 20 weeks old and it must be completed by the time the child is a year old (or one year after placement for adoption).

If the APL is being taken during what would have been the mother’s statutory maternity pay period (the first 39 weeks of maternity leave) then APL will attract statutory paternity pay. The amount of pay will be the same standard rate as the statutory maternity/ paternity weekly pay. If the leave is taken outside of the maternity pay period then the leave will be unpaid.

But how are these changes likely to impact on working fathers in practice?

A 2009 report by the Equality and Human Rights Commission (EHRC) found that whilst today’s parents wish to defy stereotypes and want to share work and family care more equally, their choices were constrained by inflexible and low paid family leave provisions based on a traditional division of paid work and care. The EHRC report looked at the experience of some of our European neighbours,

Norway, for example, provided an initial two weeks of ‘Daddy Leave’ on full pay, followed by 54 weeks of highly paid parental leave, of which nine weeks were reserved for the mother and six weeks were reserved for the father. This ‘use-it-or-lose-it’ arrangement encouraged and resulted in some 90 percent of Norwegian fathers taking it.

In 2007, Germany introduced a ‘parental allowance’. This scheme reserved two months of parental leave for the exclusive use of fathers. If fathers took their ‘daddy months’, the family was entitled to two extra months of leave. The previous system of low flat-rate pay was replaced by earnings-related compensation up to 67 percent of normal income. After its introduction in early 2007, the number of fathers taking leave quadrupled.

However, the UK has never opted to introduce such a ring-fenced, “use it or lose it approach” to fathers’ paid leave. The difficulty with the optional approach which has been followed by the UK government is that the element of choice inherent in the arrangements outlined above is likely to lead to tensions both at home, with the father’s spouse or partner, and at work, with the father’s employer, over how the father’s choice is exercised. UK working culture in many cases still favours long hours and a traditional male role as the “breadwinner” for the family.

The EHRC report found that in 2009 some 45% of new UK fathers said they did not take paternity leave under the present arrangements. Of those, 88% said they would have liked to have done so, and 49% said they could not afford it. This statistic seems unlikely to change under the new arrangements.

The rate of pay remains prohibitive. From April 2011, the rate of SMP/paternity pay will be £128.73 a week (or 90% of the average weekly wage if that is lower). Assuming a 40-hour working week, it is a figure that comes in well below the minimum wage.

APL will also only apply to fathers whose partners are employed. A recent TUC estimate was that 42 percent of pregnant women are not in paid employment. Giving fathers a ring-fenced right to additional leave would enable men to take it even when their partner is not in paid work.

As such, whilst the change is a step in the right direction, it remains to be seen what the uptake will be in practice given the issues outlined above.

Jasmine van Loggerenberg and Simon Cuthbert are Employment Solicitors at Russell Jones & Walker