At OnlyDads we are often asked for clarity on the changes being made to Paternity Leave. The following offers a very clear explanation.
On 6 April 2011, changes to the Paternity Leave rules come into force. Solicitors Simon Cuthbert and Jasmine van Loggerenberg of leading employment law firm Russell Jones & Walker, who are both parents with young children, examine how these changes will impact on single fathers in the work place.
Currently, an employee who is eligible for paternity leave will only be entitled to take up to 2 weeks statutory paternity leave. This leave must be taken in blocks of 1 week within 56 days from the date of the baby’s birth. However, fathers/carers of babies due on or after 3 April 2011 will become entitled to take additional paternity leave (APL) of up to 26 weeks (6 Months). The new laws are set to come into force on 6 April 2011.
The additional rights seem unlikely to provide any tangible benefit to single fathers however. The new laws won’t allow for both parents to take time off together and APL can only commence once the child’s mother has returned to work from maternity leave. The earliest APL can begin is when the child is 20 weeks old and it must be completed by the time the child is a year old (or one year after placement for adoption). In a situation where a father is estranged from the mother and the mother does not wish to return from maternity leave to enable the APL to commence, it will seemingly be impossible for the father to take APL.
There are alternative approaches to paternity leave, as a 2009 report by the Equality and Human Rights Commission (EHRC) found when looking at the paternity leave experiences of some of our European neighbours,
Norway, for example, provided an initial two weeks of ‘Daddy Leave’ on full pay, followed by 54 weeks of highly paid parental leave, of which nine weeks were exclusively reserved for the mother and six weeks were exclusively reserved for the father. This ‘use-it-or-lose-it’ resulted in some 90 percent of Norwegian fathers taking it.
In 2007, Germany introduced a ‘parental allowance’. This scheme reserved two months of parental leave for the exclusive use of fathers. If fathers took their ‘daddy months’, the family was entitled to two extra months of leave. Furthermore, the previous system of low flat-rate pay was replaced by earnings-related compensation up to 67 percent of normal income. After its introduction in early 2007, the number of fathers taking leave quadrupled.
However, the UK has never opted to introduce such a ring-fenced, “use it or lose it approach” to fathers’ paid leave. The difficulty with the optional approach which has been followed by the UK government, particularly for single fathers, is that the element of choice inherent in the arrangements outlined above is likely to lead to tensions both with the child’s mother and at work, with the father’s employer, over how the father’s “choice” is exercised.
The other main problem in the UK, which is likely to hit single fathers particularly hard, is the rate of pay during APL. If the APL is being taken during what would have been the mother’s statutory maternity pay period (the first 39 weeks of maternity leave) then APL will attract statutory paternity pay. The amount of pay will be the same standard rate as the statutory maternity/ paternity weekly pay. If the leave is taken outside of the maternity pay period then the leave will be unpaid. From April 2011, the rate of SMP/paternity pay will be £128.73 a week (or 90% of the average weekly wage if that is lower). Assuming a 40-hour working week, it is a figure that comes in well below the minimum wage.
The EHRC report found that in 2009 some 45% of new UK fathers said they did not take paternity leave under the present arrangements. Of those, 88% said they would have liked to have done so, and 49% said they could not afford it.
One of the few additional rights which may be of some benefit to single fathers is in those few tragic cases (estimated at some 150 – 200 cases a year nationwide) in which the child’s mother dies in childbirth or during the first year of the child’s life. In such cases, provision will be made for the father to take an extended period of APL of up to 12 months, ending with the child’s first birthday.
Whilst progress has been made in extending rights to some fathers to allow them an opportunity to spend time with their child during the first year, the law still has some way to go before all fathers can benefit from such rights. The new paternity rights are certainly a step in the right direction, however the law will need to take a few steps further to extend independent rights to all employed fathers.
Simon Cuthbert and Jasmine van Loggerenberg are Employment Solicitors at Russell Jones & Walker