The rights of parents and adopters following the birth or adoption of a child are about to change. New rules will allow greater choice for parents when taking leave and when deciding which parent should return to work. Nia Cooper, employment lawyer and Partner with leading commercial law solicitors Capital Law, explains the changes and what the new rules will mean for employers.

New paternity legislation introduced on 1 April 2010 will affect and benefit parents of children born or adopted on or after 3 April 2011. The new regime will enable parents to split up to 12 months’ leave between them. For mothers and primary adopters there is little change to the time they can take off work; however the amended rules will drastically increase the amount of time their partners can take off following the birth or adoption of a child. Whilst the changes offer real benefits to new parents, they present challenges to employers who must now prepare for employees of both sexes to take advantage of extended periods of time off work. It is therefore essential that employers understand the new paternity leave rules and the impact they might have on their businesses, and update their policies accordingly.

Instead of the current two weeks’ paternity leave entitlement, partners will be able to take up to 25 weeks’ leave, some of which could be paid, but only once the mother or primary adopter has returned to work. Before 3 April 2011 a mother or primary adopter is entitled to take up to 52 weeks’ leave following the birth or adoption of a child, 39 weeks of which are paid at the Statutory Maternity Pay rate. The first six weeks are paid at 90 percent of the average gross weekly earnings. The remaining 33 weeks are either paid at the statutory maternity or adoption rate, currently £124.88 per week (or £128.73 from 11 April), or the employee’s weekly earnings whichever is less. Partners of new mothers/adopters are entitled to take two weeks’ statutory paternity leave paid at the Statutory Paternity Pay rate, currently £124.88 or 90 percent of their weekly earnings, whichever is less.

Parents of children born or adopted after 3 April 2011 will have the option of sharing a period of paid and unpaid leave of up to 52 weeks. The earliest a partner can take leave will be when the baby is 20 weeks old (or 20 weeks after the adoption match takes place) and the leave could last until the baby’s first birthday (or the one year anniversary of the adoption match). This means that, if paternity leave is taken during the mother’s or primary adopter’s 39 week maternity period, the partner could be entitled to Statutory Paternity Pay, provided that the mother/primary adopter has returned to work (and is not therefore claiming Statutory Maternity/Adoption Pay). Of course, that financial liability would fall to the partner’s employer.

Employers will have a role to play in administering paternity leave and pay. While staff will need to self-certify their intention to take leave, this will be verified by the employer who will also need to calculate the entitlement. Employers may choose to carry out additional checks to verify the accuracy of information or to ensure the requested leave is valid – such as asking for details from the mother or adopter’s employer or the child’s birth certificate. The Government estimates that just 4-eight percent of eligible fathers will apply for this increased paternity leave; however employers must be ready to address the matter should a member of staff request time off work.

The new legislation presents both advantages and disadvantages for employers. Some key or senior members of staff may spend less time on maternity or adoption leave, choosing to split the time off with their partners. This means businesses will face only short-term change rather than long-term upheaval. But businesses must also be prepared to accommodate the requests of partners who wish to take advantage of their significantly enhanced entitlement to paternity leave. Not allowing partners to take such additional leave, or treating them less favourably on their return to work, could lead to claims of sex discrimination.

Businesses must check that all relevant policies (such as maternity, paternity and parental leave policies) are updated to reflect the changes. HMRC also intends to provide guidance and an electronic calculator in addition to an advice helpline, as commercially produced payroll software is not likely to be available until later this year. Changes to the paternity leave rules will increase opportunities for all employees to spend time with and raising their children should they choose to do so. Offering families more choice and flexibility in how they use maternity and paternity leave being to address the work-life balance that is so important to so many, ultimately creating happier, loyal and more productive employees.