Law guide: Employment

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Paternity leave - births

Paternity leave - births

Contents

Paternity leave - births

Qualifying for paternity leave

An employee qualifies for statutory paternity leave on the birth of a baby if they are:

  • The biological father of the baby and have or expect to have responsibility for the baby's upbringing
  • Not the child's biological father but the mother's husband or partner (including same-sex partner or civil partner) and have or expect to have the main responsibility for the child (along with the mother). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.

In addition, they must:

  • Have at least 26 weeks' continuous employment with you (length of service) ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week
  • Be working for you from the qualifying week up to the date of birth. If their contract ends before the birth, they do not qualify for leave - unless they go on to work for an associated employer. If their contract ends after the birth, they retain their right to leave (and statutory paternity pay if they qualify)
  • Have notified you of their intention to take paternity leave
  • Be taking the time off to support the mother and/or care for the baby

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.

An employee will still be entitled to take statutory paternity leave in the following situations:

  • Provided they have 26 weeks' service by the 14th week before the EWC, they retain their entitlement to paternity leave even if the baby is born early and they do not have 26 weeks' service at the time of the birth. This is because their entitlement is determined by the date of the EWC, not the actual date the baby is born.
  • If the employee's wife or partner gives birth to a stillborn baby after 24 weeks of pregnancy. (If the stillbirth occurs before the end of the 24th week of pregnancy, you could allow the employee to take sick or compassionate leave instead.)
  • If the baby is born alive but then later dies.

Employee notification of paternity leave

Employees must give their employer the required notice in order to qualify for paternity leave. You can request that this be provided to you in writing for your records.

When notice should be provided

Notice should be provided to you no later than the end of the 15th week before the EWC.

If the notice is provided late then you are not under any obligation to accept the notice, unless it was not reasonably practicable for the employee to notify you in time (e.g. the mother of baby did not realise she was pregnant). If this is the case, the employee must still provide you with the notice as soon as it is reasonably practicable for them to do so.

What information should be included

The notice should provide:

  • The expected week of the baby's birth (this is usually the first Sunday of the EWC)
  • Confirmation of how much leave they wish to take, namely one or two weeks
  • When they want their leave to start

The employee does not have to give you any medical evidence of the pregnancy. You do not have to give the employee confirmation of the end date of their paternity leave.

You can also request the employee to provide a written declaration stating that he satisfies the conditions that entitle him to take paternity leave and that he will be taking the time off to support the mother and/or care for the baby.

Notice of birth

In addition, the employee should provide you with a further notice as soon as reasonably practicable after the birth of the child of the date when the child was born. Once again, you can request the employee to provide this notice in writing.

The start and duration of paternity leave

Eligible employees can choose to take either one or two whole weeks' paternity leave. They cannot take it as odd days or as two separate weeks.

The duration of leave remains the same regardless of the number of children resulting from a single pregnancy.

An employee cannot start their leave until the birth of the baby. Otherwise, an employee can choose to start their paternity leave:

  • On the actual date of the baby's birth (whether earlier or later than expected)
  • On another date they have chosen falling on a specified number of days after the actual birth date (whether earlier or later than expected)
  • On the first day of the EWC (If the baby is born later than this date, they must delay their leave until the date of the actual birth.)

If an employee specifies the date of birth as the day they wish to start their paternity leave and they are at work on that day, their leave will begin on the next day.

As long as the employee has given the required notice, their paternity leave can start on any day of the week. However, their leave must finish:

  • Within 56 days of the actual birth date
  • If the child is born earlier than first day of the EWC, within 56 days from the first day of the EWC

Changing the start date of leave

The employee can change the date when they want their paternity leave to start so long as they give you the following notice which you can request that they give to you in writing:

  • If they want to change their leave so it starts on the date of birth, at least 28 days before the first day of the EWC
  • If they want to change their leave so it starts on a particular date, 28 days before that date
  • If they want to change their leave so it starts a specified number of days after the birth, at least 28 days of the expected start of their leave. For example, if the employee wants to start their leave 14 days after the birth and the EWC begins on 16 July, this means that the expected start date of their leave is on the 30 July and they must give you 28 days' notice of this date, i.e. by 2 July

Please note that in the case of the last option, if the date when the employee's leave starts turns out to be different (as the date that the child is actually born differs from the EWC) then the employee will not be required to provide you with a new notice.

Where an employee has chosen to begin their period of leave on a particular date and the child is not born on or before that date then they must vary their choice of start date using one of the above-mentioned options. In these circumstances, the employee should:

  • Discuss the situation with you as soon as possible
  • Give the appropriate notice to change the start date

If it is not reasonably practicable for the employee to give you this notice in time, then it should be given to you as soon as it becomes reasonably practicable to do so.