My Wife has just given birth, what rights do I have at work?

Paternity Leave

What is meant by Paternity Leave?

Paternity leave is the mail equivalent to maternity leave providing expectant fathers with statutory rights when their partner or spouse is to give birth.

Statutory paternity leave was first introduced in 2003 by the Employment Act 2002 and gives paternity leave to expectant fathers provided that they satisfy various conditions.

Will my employer be aware of this?

Many employers may have their own policy in relation to paternity leave which will be communicated to each of their male employee’s possibly through your contract of employment or alternatively in a policy document available to all employees.

Do I have to accept my employer’s paternity leave policy?

You are entitled to choose the statutory policy prescribed by the Employment Act instead of the policy prescribed by your employer.

Will paternity leave affect my existing statutory holiday allowance?

The statutory paternity leave provided for by the Employment Act will be in addition to your already existing statutory holiday allowance.

Who is entitled to Statutory Paternity Leave?

In order to be eligible for statutory paternity leave you must be an employee and not simply a worker or an independent contractor.

Employee

What is meant by employee?

To establish whether an individual is in fact an employee we can use the following tests:

  1. The Control Test – the employer has decided how the work should be carried out. The employee is said to be under the control of the employer.
  2. The Integration Test  – If the employee’s work is considered to be integral to the operation of the business then they will be considered an employee.
  3. Economic Reality Test  –  the employee will not assume any economic risk in their employment.

Employees are entitled to all rights of workers (shown below) but are also entitled to the following rights:

Worker

What is meant by a worker?

A worker is someone who has agreed by contract, whether this be written, oral or implied, to perform services for another party and who is not a client or customer of any business of profession undertaken by that individual.

Workers Rights

Workers are entitled to the following but do not have the above rights:

Contract of Employment

An employee must have a contract of employment with their employer to be eligible for paternity leave meaning that most agency workers or sub-contractors will not be eligible for paid paternity leave.

Conditions Required for Paternity Leave

In order to be eligible for paternity leave employees must satisfy the following conditions:

  • You must be the biological father of the child, or are the mother’s husband or partner (including a mother’s partner in a same-sex relationship); and

  • You must have been with your employer for at least 26 weeks by the end of the 15th week before the beginning of the week when the baby’s due; and

  • Will be fully involved in the child’s upbringing and are taking the time off to support the mother or care for the baby.

Statutory Paternity Pay

In order to be eligible for statutory paid paternity leave you must earn a salary which is at least the Lowest Earning Limit (LEL) for National Insurance Contributions. This limit is currently set at £84 a week. If you earn less than this Lowest Earning Limit then you will be entitled to take unpaid paternity leave and may be provided with some assistance through income support.

Duration of Leave

How much leave am I able to take?

You are able to take either one week or two weeks off for paternity leave. You cannot however, take single days off and if you take two weeks you have to take them in a complete block.

Commencement of Leave

When am I able to start my leave?

You have the following three options available to you when deciding to take paternity leave:

  1. To take leave from the day the baby is born
  2. To take leave a number of days or weeks after the baby is born
  3. To take leave from a specific date after the first day of the week in which the baby is expected to be born

You cannot start your leave before the baby is born and must take it within 56 days of the bay being born.

Does this vary if my partner has a multiple birth?

The amount of statutory paternity leave is set by statute and cannot be varied even if your wife has had a multiple birth.

Pay entitlement

How much am I entitled to be paid?

If you earn over the Lowest Earning Limit for National Insurance Contributions you will be eligible to receive statutory paternity pay (SPP) which is currently calculated at £124.88 per week. If you earn less than £124.88 per week then you will be entitled to be paid 90% of your standard weekly wage. You will still be required to pay tax and national insurance contributions in the same way as an employee.

The rate of maternity allowance is subject to an annual yearly review by the Department of Work and Pensions each April.

The above figures are correct as 6 April 2009.

Notice

How much notice is required?

You are required to give 15 days’ notice before the week in which the baby is due to be born. This notice must be in writing and must stipulate the following:

  • When the baby is due
  • If you wish to take one or two weeks leave
  • When you wish the leave to commence

Adoption

Can I take Paternity Leave if I adopt a baby?

If you adopt a baby you may be eligible to take paternity leave and be eligible for statutory paternity pay. As if often the case when couples adopt a baby they often have to choose which partner will take either the maternity or the paternity leave if eligible.