Paternity leave: What are your rights?
You may be entitled to paternity leave and paternity pay if you’re the partner of a woman who’s pregnant or has just given birth, or if you and your partner are adopting a child or having one by means of a surrogacy arrangement.
This guide gives you an overview of your paternity leave and paternity pay rights and how to realise them. It also includes a brief outline of your rights to Shared Parental Leave.
What is paternity leave?
Paternity leave enables you to take leave from work after the birth of your child. It gives you the chance to support your partner and spend important time bonding with the child. You can also claim paternity leave if you are adopting or having a child through surrogacy.
The term ‘paternity’ is used by the government and in legislation irrespective of whether you are male or female, so that’s the term we will also use.
Who’s eligible for paternity leave?
You have to meet the criteria below to be eligible for paternity leave:
- You must have been employed by the same company for a minimum of 26 weeks by the end of the 15th week before the due date, or before you have been matched with a child for adoption
- You have to be the child’s father or intended parent; husband, partner or civil partner of the mother or of the adopter
- You must be one of the people responsible for the child’s upbringing and intend to spend some time caring for the child and/or supporting its mother
- You must also give your employer the correct amount of notice (see below) about your wish to take paternity leave
Paternity leave for surrogate parents and adoptive parents have additional eligibility requirements, as outlined below.
Additional eligibility criteria for surrogate parents
If you are participating in a surrogate arrangement, your employers have a right to ask for proof of the surrogacy and confirmation in writing that you intend to apply for a ‘parental order’ (to become the child’s legal parents) within 6 months of the child’s birth. (See this gov.uk page for more.)
Additional eligibility criteria for adoptive parents
The following additional eligibility criteria apply in the case of adoptive parents:
- Only one parent can take paternity leave. The other would have to apply for adoption leave.
- You have to provide proof of the adoption to be eligible for paternity pay, although you don’t have to provide proof for paternity leave unless your employer requests it.
- Proof can take the form of a letter from your adoption agency or what’s called the ‘matching’ certificate, which confirms that you’ve been matched with a child for adoption.
- For a UK adoption, you must have worked for the same employer for at least 26 weeks before the end of the week when you have been matched with a child.
- The 26-week rule also applies to overseas adoption, although it relates to the week the child arrives in the UK.
For more detail on paternity pay and paternity leave in cases of surrogacy and adoption, see this gov.uk page.
What if you’re not eligible for paternity leave?
If you’re not eligible for paternity leave, your employer might be willing to give you some time off (whether paid or not would be at their discretion) or you could use some of your paid holiday entitlement.
What paternity leave/pay notice do you have to give your employer?
Before you take paternity leave or request pay for the time you are on paternity leave, you must ensure that you give your employer the correct amount of notice.
Notice required for paternity leave
Planning for paternity leave requires you to give your employer the right amount of notice. This should be given no later than 15 weeks before the due date.
Tell your employer when the child is due, or the placement start date if you are adopting. Also inform them whether you want to take one or two weeks’ leave and when you want it to start. If you wish to change the date you can do this with 28 days’ notice.
If you are adopting, notice must be given within 7 days of being matched with a child.
Notice required for paternity pay
You must request paternity pay at least 15 weeks before the due date.
To request paternity pay you can use a government form called an SC3 form (or your employer’s own version). An SC4 form should be used to request leave and pay if you are adopting or expecting a child through a surrogacy arrangement.
How long is paternity leave?
A period of one or two weeks of paternity leave is available to people having a child, using a surrogacy arrangement or adopting. However, it cannot be divided into separate periods and must be taken all in one go.
Additional leave for antenatal appointments
If you are the father of the child, spouse or civil partner of the birth mother, in a long-term relationship or the intended parent (through surrogacy) you also have the right to take unpaid leave to attend 2 antenatal appointments with your pregnant partner/surrogate.
Can you take paternity leave and holiday leave together?
Paternity leave should never be counted as part of your paid holiday or annual leave entitlement: it has to be taken on a separate occasion.
If you’ve got outstanding holiday leave and want to use it to extend your paternity leave – whether it’s before or after your paternity leave period – your employer may be willing for you to do that, but it is not an automatic right.
Whether you take one or two weeks off work for paternity leave, you still continue to accrue paid holiday leave.
If your paternity leave includes a bank holiday, then you are entitled to a day off in lieu for each day of bank holiday that falls within your paternity leave period.
When does paternity leave have to be taken?
For people taking leave for a newborn baby, paternity leave can start from the day of birth. This also applies to the birth of a surrogate baby. If you are adopting, leave can start the day the child is placed with you.
Alternatively, you can agree a date in advance with your employer that is after the birth or adoption, although your full paternity leave needs to be completed in full within 56 days.
How much is paternity pay?
When you are on paternity leave you are entitled to statutory paternity pay and possibly to any additional paternity leave pay paid by your employer – if they offer a company scheme (which they’re not obliged to).
Statutory paternity pay
Most people eligible for paternity leave will have entitlement to statutory paternity pay for the period of time they are away from work.
If you’re eligible for paternity leave, but not for statutory paternity pay, you may be able to get Income Support during your paternity leave (see this gov.uk page for more).
In order to qualify for paternity pay, you must continue working for your current employer until the birth date. You must also be earning at least £123 a week.
You will receive the lower amount of either:
- £172.48 a week (2022-2023 rate) or
- 90% of your average weekly earnings
Company paternity pay
Your employer has the discretion to offer additional paternity pay to top up statutory paternity pay.
What can you do if your employer refuses you paternity leave/pay?
As long as you are eligible and have given the right amount of notice, your employer cannot legally refuse or postpone your paternity leave.
If you are the child’s father, the mother’s partner, part of a surrogacy arrangement or adopting a child, you have a legal right to ask for paternity leave. Your employer would be acting unlawfully for dismissing you or treating you unfairly for asking.
What is shared parental leave (SPL)?
Shared parental leave replaced what was known as ‘additional paternity leave’ in 2015. It recognises that couples responsible for the upbringing of a child may want to share leave entitlement to care for their new child.
- You have a right to shared parental leave once your child has been born or your adoption placement has started.
- You can share up to 50 weeks of shared parental leave and up to 37 weeks of statutory shared parental pay – paid at the same rate as paternity pay (see above).
- You have to choose whether to apply for shared parental leave or paternity leave: you can’t have both.
Eligibility for shared parental leave
To be eligible for shared parental leave you must:
- Share parental responsibility with your spouse, civil partner, joint adopter, partner or the child’s other parent. (See gov.uk Parental rights and responsibilities for more.)
- Be employed by the same company for a minimum of 26 weeks by the end of the 15th week before the due date (or date you are matched with the child).
- Still be employed by the same company until the week before shared parental leave begins.
How to request shared parental leave
The steps you have to take in making an SPL request depend on whether you are the birth parent or not.
If you are the person taking the SPL:
- You have to give your employer at least 8 weeks’ notice, called ‘Booking Notice’.
- If your employer dismisses you or treats you unfairly because of your request, they will be acting unlawfully. They also cannot legally refuse or cancel your parental leave.
- However, your employer does have the right to delay your parental leave if they believe it will cause disruption to the company. It can be postponed for up to 6 months after the date you originally requested.
- If your parental leave is postponed, your employer must tell you the reasons why and suggest alternative dates in writing within 7 days of your request.
See this Working Families article for more on making an SPL request.
If you think your employer has unfairly treated you or discriminated against you over your entitlement to paternity leave and/or paternity leave pay, Monaco Solicitors may be able to help.
Our specialist employment lawyers can help you identify whether or not you have a legal case against your employer, advise on whether you may be entitled to compensation for unfair treatment or discrimination and help you achieve compensation if your case has merit.
To find out more about our no-obligation consultation, contact us:
- Via this link
- By phone: 020 7717 5259
- By email: firstname.lastname@example.org