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Frettens Update: Additional Paternity Leave ("APL") and Pay

  13th April 2011      
 Company News, Employment Law

1 April 2011

The Additional Paternity Leave Regulations 2010 allow fathers (and adoptive partners) the right to up to six months’ paternity leave which can be taken once the mother (or other adopter) has returned to work. The regulations came into force on 6 April 2010 and apply to parents of children due (and adoptive parents notified of a match) on or after 3 April 2011.

APL allows fathers and other eligible employees to take time off work to care for a child before that child reaches his or her first birthday once the mother (or other adoptive parent) has returned to work. The APL is available in addition to the right to two weeks’ paid statutory paternity leave.

Both parents and partners must be employees and the child’s mother must be entitled to maternity leave, statutory maternity pay (“SMP”) or maternity allowance (“MA”) and must have returned to work. The APL Regulations treats the mother as having returned to work where she has ended her maternity leave or has lost her entitlement to SMP or MA by working.

APL, in respect of adoption leave, applies where the couple are notified of being matched with a child for adoption on or after 3 April 2011. As above, the child’s adopter must also be entitled to one or both of adoption leave or statutory adoption leave pay, and must have returned to work.

The APL Regulations require employees to self certify that they are eligible for APL. HMRC will carry out compliance checks and financial penalties will be imposed where it can be shown that claimants have made a fraudulent claim for APL.

Under the regulations, employees will have to provide written notice to their employer eight weeks before the start of his leave. An employer must respond to an employee’s leave notice within 28 days, confirming the employee’s entitlement to APL and the timing of the leave.

Employers are not obliged to check whether the mother is eligible for maternity leave or that she has returned to work. However employers can, within 28 days of receiving a leave notice, request from that employee a copy of the child’s birth certificate and the name and address of the mother’s employer or business address if she is self employed. If an employee fails to comply with this request then he will no longer be entitled to APL.

The contract of employment will continue during APL and the employee must be treated in all respects as if he were not absent. An employee returning to work from a period of APL, subject to certain provisions, is entitled to return to the job in which he was employed before his absence.

Special provisions apply where an employer proposes terminating the employee’s employment on the ground of redundancy during a period of APL. Similar to a woman on maternity leave, suitable alternative employment must be offered to the employee on APL before the end of his employment under his existing contract.

There is no additional entitlement to statutory paternity pay. An employee on APL will be able to claim what is left of the mother’s entitlement to SMP, up to the current 9 month limit.

For further information regarding any of the points above please contact Kate Fretten kfretten@frettens.co.uk or Paul Burton pburton@frettens.co.uk.

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