Maternity and Paternity Leave: Cutting Through the Confusion

Peninsula Team

August 26 2009

Employers need to be aware of employee’s rights when they are expecting a child. It is important to remember that there are numerous situations in which employees are eligible to receive Maternity and Paternity Leave. If you need any advice with Maternity and Paternity issues call through to the Advice Service on 0844 892 2772 and one of our employment law specialists will be happy to help. Most people are familiar with the concept, if not the details, of maternity leave and pay, but the right of some employees to take paternity leave and pay may come as more of a surprise. Paternity Leave and Paternity Pay are available to employees of either sex who are the partner of a woman who has given birth, or the partner of someone who is adopting the child provided that they are expecting to play a part in the child’s upbringing. It consists of a period of up to two weeks of leave - given in addition to annual holiday entitlement - to be completed by the first 56 days after the birth. There is no right for employees to split the time into odd days. They may take one period only, of one or two weeks as they prefer. They must also meet certain criteria; they must have 26 weeks’ service at the 15th week before the baby is due; they need to notify you at this point of their intention to take the leave and complete a declaration called an SC3. (There is no requirement to ask them to provide medical evidence of their partner’s pregnancy). The current rate of Statutory Paternity Pay is £123.06 per week - employees who normally earn less than this are paid 90% of their usual week’s pay. If they earn below the Lower Earnings Limit for National Insurance -currently £95 per week - they may be entitled to the leave, but not the pay. It is useful to have a discussion with the employee about when they are planning to take their leave - it cannot start until the baby is born (or the child placed for adoption), but some flexibility on both sides may be needed. Some employees may want to take some holiday as well as, or instead of, Paternity Leave. This can frequently be the case where their partner is on Maternity Leave and the additional temporary loss of earnings presents them with difficulties. Unlike Paternity Leave, there is no longer any service requirement for Maternity Leave; all expectant mothers, no matter how short their service with you, may take up to 52 weeks maternity leave. However, if they have not had 26 weeks’ continuous service at the 15th week before the week the baby is expected, they will not be entitled to Statutory Maternity Pay. New employees who find themselves in this position may be able, as an alternative, to claim State Maternity Allowance based on their National Insurance record, typically with a previous employer. Statutory Maternity Pay lasts for 39 weeks and is generally payable at 90% of the employee’s weekly pay for the first six weeks, followed by the remainder at the standard rate, currently £123.06. It is important to remember that women on maternity leave have continuity of service and keep all the benefits of their employment - except for their pay during this period. It is worth checking the employee’s contract of employment to understand what this means in any individual case, but the right to accrue holiday is something that will generally affect everyone. Once again, talking it through with your employee to see if they wish to take holiday either end of their maternity leave, or discussing how the holiday will be given when she returns can save misunderstandings and inconvenience on both sides. They are also entitled to return to the same job. After they have been off for 26 weeks, this changes slightly to a right to return to an equivalent role. It’s important to remember that individuals may have contractual rights that go beyond these statutory provisions. If you have an employee who tells you they are pregnant, or that their partner is pregnant, or that they are adopting a child, contact Peninsula’s 24 Hour Advice Service on 0844 892 2772 to find out how the rules apply in their specific case and to plan for everything to go smoothly.

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