Law guide: Employment

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Statutory paternity pay

Statutory paternity pay

Contents

Statutory paternity pay - births

Qualifying for statutory paternity pay

A person qualifies for statutory paternity pay (SPP) if they have:

  • At least 26 weeks' continuous employment with you up to and including the date of the 15th week before the expected week of childbirth (EWC) - the 'qualifying week'
  • Average weekly earnings (AWE) at or above the lower earnings limit (LEL) for National Insurance contributions (NICs) that applies at the end of the qualifying week (currently £113)
  • Given you 28 days' prior notice (in writing if requested) of the date from which they want to start their SPP. If they are entitled to statutory paternity leave they can give you this notice at the same time as their notice for that. If it was not reasonably practicable for the employee to give this notice in time then it should be given to you as soon as possible
  • Provided you with a written declaration of their 'family commitment', which must be submitted at least 28 days before the start of the SPP period. The declaration should state that they qualify to take paternity leave and that they will be taking the time off to support the child's mother and/or care for the child. If it was not reasonably practicable for the employee to give you this notice in time then it should be given to you as soon as possible.

That person also has to be:

  • An employed earner, i.e. an employee or office holder (someone working as a director of a company)
  • Liable to pay secondary Class 1 NICs on their wages or salary

Although this generally applies to employees, an agency worker, for example, may also be eligible for SPP even if they are not eligible for statutory paternity leave.

The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday.

If the employed earner has more than one employer, they may be able to claim SPP from each one.

Failing to qualify for SPP

If an employee does not qualify for SPP, or fails to provide you with these notices or does not give you adequate notice then you can refuse to pay SPP.

You must give them a completed form SPP1 which is available from HM Revenue and Customs.

If there is a dispute between you and the employee over whether they should be paid SPP, then you can refer it to HM Revenue and Customs to make a formal decision.

The rate and duration of SPP

SPP is payable at a standard weekly rate, which is the lower of:

  • £140.98 (in 2017/18)
  • 90% of the employee's AWE

SPP can be paid for no more than two weeks.

The rate (and duration) of SPP remains the same regardless of the number of children resulting from a single pregnancy.

You can, if you wish, have enhanced paternity pay arrangements to attract and retain employees.

For example, you could:

  • Pay full pay during the employee's paternity leave. However, you could also change the qualification criteria for this enhancement, e.g. the employee needs a year's continuous service
  • Pay SPP to all employees – regardless of whether or not they meet the statutory qualification criteria

You can offer these arrangements as a contractual right. If you offer them on a discretionary, case-by-case basis, you must act reasonably and comply with legislation aimed at tackling discrimination. You should be aware the arrangements may become contractual through 'custom and practice'.

Ending SPP payments

You can stop paying SPP if an employee:

  • Dies
  • Works for another employer whom they did not work for during the qualifying week
  • Is taken into legal custody by the police, e.g. is arrested and/or in prison

You do not have to pay SPP to an employee for any week during which they do some work for you.

Recovering SPP payments

You can recover 92% of your SPP payments from the government.

However, if your total annual National Insurance payments are £45,000 or less you can recover 103%. You can calculate the statutory paternity pay and the amount you can recover on the HM Revenue and Customs website.

Statutory paternity pay - adoptions

Qualifying for statutory paternity pay

The qualification criteria for statutory paternity pay differ for UK and overseas adoptions.

UK adoptions

A person qualifies for SPP when they are adopting a child from within the UK if they:

  • Have at least 26 weeks' continuous service with you by the Sunday in the week in which the adopter is notified of having been matched with the child. The week begins on a Sunday and ends the following Saturday
  • Have average weekly earnings (AWE) at or above the lower earnings limit (LEL) for National Insurance contributions (NICs) that applies at the end of the matching week (currently £113)
  • Given you 28 days' notice (in writing if you request) of the date from which they want to start their SPP. If they are entitled to paternity leave they can give you this notice at the same time as their notice for that. If it was not reasonably practicable for the employee to give you this notice in time then it should be given to you as soon as possible
  • Provided you with a written declaration of their 'family commitment', which must be submitted at least 28 days before the start of the SPP period. The declaration should state that they satisfy the conditions that entitle them to take paternity leave and that they will be taking the time off to support the child's adopter mother and/or care for the child. You should accept this at face value unless you have very strong reasons for suspecting that it is false. If it was not reasonably practicable for the employee to give you this notice in time then it should be given to you as soon as possible
  • Continue to work for you from the matching week to the date of placement

Overseas adoptions

A person qualifies for SPP when they are involved in adopting a child from overseas if:

  • The other or main adopter has received official notification of the adoption
  • They have worked for you continuously for at least 26 weeks by the end of the week in which the adopter receives official notification or by the time they want their SPP to begin, whichever is later, and continue to work for you up to the date of the child's entry into the UK
  • They have given you 28 days' notice (in writing if you request) of the date from which they want to start their SPP. If they are entitled to statutory paternity leave they can give you this notice at the same time as their notice for that.
  • They have provided you with a written declaration of their 'family commitment', which must be submitted at least 28 days before the start of the SPP period. The declaration should state that they satisfy the conditions that entitle them to take paternity leave and that they will be taking the time off to support the child's adopter mother and/or care for the child. You should accept this at face value unless you have very strong reasons for suspecting that it is false.
  • They have average weekly earnings (AWE) at or above the lower earnings limit (LEL) for NICs which applies at the point when the adopter receives official notification or they complete 26 weeks' service, whichever is later. The LEL is currently £113 per week

Employment status

To qualify for SPP for both UK and overseas adoptions, a person also has to be

  • An employed earner, i.e. an employee or office holder (someone working as a director of a company)
  • Liable to pay secondary Class 1 NICs on their wages or salary

Although this generally applies to employees, an agency worker, for example, may be eligible for SPP even if they are not eligible for paternity leave.

If the employed earner has more than one employer, they may be able to claim SPP from each one.

Failing to qualify for SPP

If an employee does not qualify for SPP, or fails to provide you with these notices or does not give you adequate notice then you can refuse to pay SPP.

You must give them a completed form SPP1 which is available from HM Revenue and Customs.

If there is a dispute between you and the employee over whether they should be paid SPP, then you can refer it to HM Revenue and Customs to make a formal decision.

The rate and duration of SPP

SPP is payable at a standard weekly rate, which is the lower of:

  • £140.98 (in 2017/18)
  • 90% of the employee's AWE

SPP can be paid for a period of one week or two consecutive weeks.

You can, if you wish, have enhanced paternity pay arrangements to attract and retain employees.

For example, you could:

  • Pay full pay during the employee's paternity leave. However, you could also change the qualification criteria for this enhancement, e.g. the employee needs a year's continuous service
  • Pay SPP to all employees - regardless of whether or not they meet the statutory qualification criteria

You can offer these arrangements as a contractual right. If you offer them on a discretionary, case-by-case basis, you must act reasonably and comply with legislation aimed at tackling discrimination. You should be aware the arrangements may become contractual through 'custom and practice'.

Ending SPP payments

You can stop paying SPP if an employee:

  • Dies
  • Is taken into legal custody by the police, e.g. is arrested and/or in prison
  • Works for an employer who they did not work for during the adoption matching week

You do not have to pay SPP to an employee for any week during which they do some work for you.

Recovering SPP payments

You can recover 92% of your SPP payments from HMRC. However, if your total annual National Insurance (NI) payments are £45,000 or less you can recover 103%. You can calculate the paternity pay and the amount you can recover on the HM Revenue and Customs website.

You can still recover the SPP portion of any enhanced paternity pay from HMRC.