Additional paternity leave regulations announced

8 April 2010

Summary
The Additional Paternity Leave (“APL”) Regulations 2010 (“Regulations”) allow an eligible employee to take a maximum of 26 weeks' APL before the child's first birthday. However, the right only arises where the employee's spouse, civil partner or partner has returned to work with some of their statutory maternity or adoption leave untaken. These Regulations will affect parents whose babies are born on or after 3 April 2011 or who, in relation to adoption, are notified of having been matched on or after 3 April 2011.

What are the current paternity leave rules?
Currently all employed mothers and adopters of children are entitled to 52 weeks of maternity or adoption leave, 39 of which is paid. Eligible fathers can claim a statutory minimum of two weeks’ paid paternity leave. Employers can give their eligible employees better paternity leave terms than the statutory minimum: few have chosen to do so.

New APL Regulations
Fathers are increasingly keen to be involved in raising their child during its first year. To support this, the Government has now introduced measures that will increase the statutory minimum entitlement to APL. The Regulations confer the right to take APL, following the birth of a child, to fathers or spouses and partners (of either sex) of the child’s mother. In the case of adoption, the entitlement is granted to persons who have been matched with the child for adoption and who are spouses or partners (of either sex) of the adopter who has elected to take adoption leave.

The Regulations set out the options for when and how the leave may be taken. In particular, they indicate the maximum and minimum length of leave which may be taken (there is a maximum limit of 26 weeks and minimum one of 2 weeks), the fact that it may only be taken in multiples of complete weeks and that it must be taken in (the period beginning 26 weeks after the birth or placement for adoption and ending 12 months after the birth or placement for adoption).

Some of the leave may be paid if taken during the mother's statutory maternity pay period; leave taken after this period has ended will be unpaid. The Regulations apply to all employees. Paid leave will be at the rate of statutory maternity pay. The Government estimates that around 400,000 men a year will qualify for the APL under the new regulations.

When will the new Regulations come into force?
Whilst the APL Regulations come into force on 6 April 2010, they will only affect parents of babies whose expected week of birth (or matching for adoption) is on or after 3 April 2011. This delay is in order to give businesses a year to prepare for the change that the new APL system will introduce.

Where can I obtain a copy of the new Regulations?
The Regulations are contained within a series of statutory instruments, they that are available on the Office of Public Sector Information web-site. The statutory instruments are:

• Additional Statutory Paternity Pay (General) Regulations 2010
• Additional Paternity Leave Regulations 2010
• Additional Statutory Paternity Pay (Adoptions from Overseas) Regulations 2010
• Additional Paternity Leave (Adoptions from Overseas) Regulations 2010
• Additional Statutory Paternity Pay (Weekly Rates) Regulations 2010
• Employment Rights Act 1996 (Application of Section 80BB to Adoptions from Overseas) Regulations 2010.

The regime governing maternity and paternity leave, differentiating between birth and adoption and between domestic adoptions and adoptions from overseas, and making provision for paid leave at varying rates in limited circumstances, is complex and difficult to unravel. We will provide a comprehensive review in the next edition of Employment Focus. In the meantime, should you require advice in relation to any specific situation, please contact a member of our Employment and Pensions Practice Group.