fathers to benefit from additional paternity leave

More generous family friendly rights which come into effect next year will allow mothers to transfer the last half of their maternity leave to the fathers. Employers will need to be aware of the new rights and consider how they will operate this in practice.

the new right

New legislation was passed in April this year which will allow fathers or partners to take up to 26 weeks additional paternity leave (APL) where the mother or primary adopter has returned to work. This new right will only apply to children who are due on or after 3 April 2011 (or adopters notified of a match with a child on or after that date).

Allowing fathers to be able to take up to six months paternity leave builds significantly on the current entitlement of up to two weeks paternity leave. What's more, fathers may be able to receive paternity pay for a proportion of that leave (until the date the mother's entitlement to maternity pay or maternity allowance would have ceased).

Whether employees are entitled to this right will depend on both the father and the mother meeting a number of qualifying criteria which will be established by employees "self-certifying" their eligibility to this right and declaring those details as correct to their employer.

in practice

The concern with the system of self certification is that it leaves the door open for potential abuse. HMRC have said they will be undertaking random compliance checks to ensure that employers and employees are operating the system properly. Any proven dishonesty by employees could lead to dismissal for gross misconduct. Employers could face penalties for not implementing the system correctly. Employers may therefore want to consider undertaking further checks, such as confirming the mother's eligibility and that she has returned to work with her employer.

Employers would be wise to use the time before the new rights come into practice to review and amend their existing family friendly policies to reflect the changes. In doing so, employers should consider whether they will offer fathers an enhanced rate of pay for any period on APL if they give this to mothers on additional maternity leave, as not to do so could arguably amount to discrimination.

One thing employers may wish to bear in mind is that, whilst it is a significant change to the current position, it is anticipated that only 4%-8% of fathers will take advantage of this new right. Therefore, in practice employers may see little change.