Law guide: Employment

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Paternity leave - contractual issues

Paternity leave - contractual issues

Contents

Contractual issues during paternity leave

An employee's contract of employment continues throughout paternity leave unless either you or the employee expressly ends it or it expires.

Terms and conditions during paternity leave

During paternity leave an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except for the terms relating to wages or salary.

Examples of contractual terms and conditions that continue during paternity leave include:

  • Gym membership
  • Participation in share schemes
  • Reimbursement of professional subscriptions
  • The use of a company car or mobile phone (unless provided for business use only)

Continuous employment and paternity leave

Paternity leave counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, e.g. the right to a redundancy payment.

It also counts towards assessing seniority and personal length-of-service payments, such as pay increments, under the contract of employment.

Accrual of annual leave

An employee continues to accrue statutory - and any contractual - annual leave entitlement throughout paternity leave.

An employee may not take annual leave during paternity leave - but may take it immediately before or after paternity leave.

Contributions to an occupational pension scheme (OPS)

For the purpose of pension rights, during paternity leave an employer should maintain its contribution to an OPS. The employee must continue to pay their pension contributions if the pension scheme rules require them to do so. An employee will not have to make any contributions towards their pension during any period in which they are not receiving any statutory paternity pay. However, they may still make voluntary contributions if the pension scheme rules allow them to do so.

Returning to work from paternity leave

An employee will have the right return to a job with the same seniority, pension rights and similar rights. They will also have the right to return to a job with the same terms and conditions (including remuneration) that are as favourable as they would have been if they had not gone on leave. Following paternity leave, employees will be entitled to return to the same job that they had before taking paternity leave.

Following paternity leave, employees will be entitled to return to the same job that they had before taking paternity leave if any one of the following is true:

  • They only took paternity leave; or
  • They took no more than 4 weeks of parental leave; or
  • (For employees in England, Wales or Scotland) The paternity leave followed another period of statutory leave (except parental leave) and the total leave taken was 26 weeks or less;
  • (For employees in Northern Ireland) They took 2 or more consecutive periods of any other statutory leave that resulted in more than 4 weeks of statutory leave.

The employee will still have a right to return to the same job if they return to work after having taken:

  • more than 4 weeks of parental leave; or
  • a period of paternity leave or parental leave that does not comply with the above-mentioned right to return to the same job.

However, if it isn't reasonably possible for you to give it back to them they will have the right to return to another job that is both suitable and appropriate for them to do. A suitable and appropriate alternative job must be as close as possible to the previous role held by the employee. They must keep their remuneration, seniority, status and the same terms and conditions of employment as if they had not been absent.

They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they were away.

An employee returning to work may make a request to work flexibly, e.g. to work from home or do part-time hours.