Paternity Leave Guide for Employers

Employers have to meet a number of legal responsibilities in relation to paternity leave.

In this guide, we look at what employers should do to comply with their obligations while supporting employees taking paternity leave.

 

Section A: UK Paternity Rights at Work

 

Where an employee is expecting a baby and will have paternal responsibility for the child, they may be eligible for paternity leave. Paternity leave in the UK allows eligible employees, typically fathers or partners of the mother, to take time off work following the birth or adoption of a child.

Paternity leave can apply where the child is born to the employee’s partner or to a surrogate, or is adopted.

Paternity leave can be taken within the first 52 weeks after the child’s birth, though it cannot start before the baby is born. The employee might arrange alternative leave, such as holiday, before the paternity leave starts.

It is important to note that during the period of paternity leave, the father’s employment rights continue to be protected, such as the right to be paid, the right to be informed of changes to their job and working conditions, e.g. the risk of redundancy, the right to accrue holiday, the right to be treated fairly and without discrimination, including discrimination for taking paternity leave, the right to receive appropriate pay rises, bonuses and company benefits, e.g. company car, and the right to return to their job under the same pay and working conditions.

 

Section B: Eligibility for Paternity Leave & Pay

 

Eligibility for paternity leave depends on certain conditions being met. The employee must be either the biological father of the child, or the husband or partner of the child’s mother, or the husband or partner of the primary adopter of the child, or the primary adopter. They will also need to be responsible for raising the child and be using the paternity leave to care of the baby and/or their partner.

The employee must have been employed continuously for 26 weeks or more by the time of the fifteenth week before the baby will be born, or by the end of the week when the primary adopter is told that they have been placed with a child in the UK, or in the case of an adoption from overseas, the date when the child arrives in the UK.

The employee will need to be working for the employer up to the birth, and they will need to earn a minimum of £118 a week (before deductions) over a period of 8 weeks that is relevant to the leave.

If the child is stillborn, the employee may be entitled to statutory bereavement leave and pay.

 

Section C: Giving Notice to Take Paternity Leave

 

To take statutory paternity leave, an employee must inform their employer that they are expecting a baby, that they intend to take paternity leave, and also advise of the expected week of childbirth. This information needs to be provided before the end of the “qualifying week,” which is calculated by counting back 15 weeks from the expected week of the baby’s birth. The qualifying week runs from Sunday to Saturday.

The employee must also confirm in writing to their employer, by email, letter or by using the statutory form SC3, that they are the child’s father or the partner of the mother or birth parent, which includes same-sex partners.

For babies due on or after 7 April 2024, the employee must also inform their employer of their leave dates at least 28 days in advance.

 

Section D: How Long is Paternity Leave?

 

Employers must offer a statutory minimum of two weeks’ paternity leave to eligible employees. This applies whether the leave relates to one child or multiple.

The employee can take one week or two weeks consecutively after the baby has been born.

If the organisation offers employees more than the statutory two-week leave, this should be detailed within a paternity leave policy.

Employees are required to notify their employer of the date the baby is due no later than 28 days before the expected date of childbirth and also of when they expect to start their paternity leave. They should also state whether they intend to take one or two weeks off as paternity leave.

Notice of paternity leave can be given verbally, but is it advisable to request that it be put in writing to retain on record.

Paternity leave usually starts on the day the baby is born but it may also start after the birth or due date, provided the employer agrees to this. This will necessarily require flexibility on the employer’s part in respect of cover, since the baby may not be born on its due date.

If the employee has confirmed they will start their paternity leave on the date of birth, and they are in work the day the child is born, paternity leave will start the following day.

Paternity leave must be finished within 52 weeks after the birth. Paternity leave may not be taken before the birth.

If the baby is born early, and provided the employee has worked for the employer for a minimum of 26 weeks by the qualifying week and meets all other criteria, they would still be eligible to take paternity leave. If the employee has already given notice of their intended start date for paternity leave, they should advise their employer as soon as reasonably possible that the baby has been born and if they will be starting their paternity leave early.

If the child arrives before the employee has submitted their SC3 form, this must still be completed and returned to you as soon as reasonably possible to confirm the due date and actual date of birth.

In many cases, fathers may request to take annual leave after the baby is born. Such requests should be handled in the usual way for time off work for holidays, meaning you can accept or refuse on the basis of business need. Likewise, the employee may ask to take time off unpaid, for example as dependants’ leave, but again this must be agreed with you first.

 

1. Paternity Leave for Adoption

 

Paternity leave may also be taken where an employee is adopting a child or is the partner of the primary adopter. Eligibility, conditions and notice are similar to those for birth parents except where the following apply: where the child is adopted from the UK, the date of birth is swapped for the date when the adopted child is placed with their primary adopter oran agreed number of days after the date of placement; where the child is adopted from overseas, the date of birth is swapped for the date the adopted child arrives in the UK or an agreed number of days after; the employee must confirm in writing that their partner will receive statutory adoption pay or provide a copy of their partner’s form SC6; when giving notice of an adoption and making a request for paternity leave, the employee must provide this at least 28 days before they would like paternity pay to begin, and the start date of the paternity leave must be no more than 7 days after their partner is matched with an adopted child; paternity leave may begin in the case of a UK adoption, when the child is placed with the employee or an agreed number of days after the child is placed, or in the case of an overseas adoption, when the child arrives in the UK or an agreed number of days after the child arrives from overseas; to be granted paternity pay, the employee must provide proof of the adoption, such as a letter from the related adoption agency.

For all adoptions, an employee will need to have taken their Paternity Leave within 56 days of the placement date.

 

2. Leave for Surrogate Fathers

 

Where the child will be born to a surrogate mother, the father can take paternity leave from the day the child is born or the day after.

 

3. Leave for Stillborn Babies

 

Under the Parental Bereavement (Leave and Pay) Act, parents and primary carers who have lost a child under the age of 18 will be entitled to at least two weeks’ statutory paid parental bereavement leave. This includes employees who suffer a stillbirth after 24 weeks of pregnancy, continuing the right to paternity leave and pay.

Parents and primary carers must have been employed for a continuous period of at least 26 weeks before their bereavement and have received pay above the lower earnings limit for the previous eight weeks.

Those who have not been employed for less than the continuous period of at least 26 weeks will be entitled to two weeks’ unpaid parental bereavement leave.

 

Section E: How Much is Paternity Pay?

 

During paternity leave, eligible employees should receive statutory paternity pay of the lower amount of £184.03, or 90% of their average weekly earnings (whichever is lower). Deductions will be made from this amount for tax and national insurance.

If the organisation offers contractual paternity pay, this cannot be lower than the statutory amount. Again, this should be detailed within the paternity policy for clarity.

For adoptions, paternity pay should not start until the employee has been given confirmation that the child has been placed. The expected date of placement should not be relied on to start paternity pay.

 

Section F: Paternity Leave & Discrimination

 

Employees are protected by law from workplace discrimination on the grounds of paternity leave or as a result of exercising or seeking to exercise their paternity rights.

This means their employment terms and conditions should not be changed by reason of paternity and their usual employment rights under contract and statute still apply, such as the right to take annual leave.

Where an employee considers they have been treated unfairly by reason of paternity, they may be able to raise a formal complaint which, if not resolved, could escalate into a tribunal claim.

Employees should be encouraged to try to raise any concerns informally with their line manager or appropriate contact in the organisation first to attempt to resolve the matter.

 

Section G: Shared Parental Leave

 

Where the employee feels paternity leave does not provide sufficient time for them to care for their child and partner, it may be that Shared Parental Leave offers a solution.

Employees may be eligible for more leave or pay if their partner returns to work and they qualify for Shared Parental Leave (SPL). SPL allows both parents to share the mother’s entitlement to maternity leave, together with her right to statutory maternity pay through shared parental pay (ShPP).

Where eligible for SPL and ShPP, parents can share up to 50 weeks of leave and up to 37 weeks of pay during the first year after the child is born. The leave does need not be taken altogether but can be used in ‘blocks’, separated by periods of work. Parents can also choose to be off work together, or to stagger their leave.

To be eligible for SPL and ShPP, the employee will need to give reasonable notice and also meet the relevant work and pay criteria. They must be classed as employees and not workers, and have been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth. They must stay employed by the same employer while taking SPL.

Parents will also have to meet criteria in relation to pay. The mother, for example, will need to earn on average at least £123 a week, while their partner must have earned at least £390 in total in 13 of the 66 weeks before the expected birth date or adoption match date.

The criteria can, however, differ depending on how the leave will be used, for example, if sharing the leave equally or where the employee’s partner is taking more of the leave. Taking advice can ensure you proceed correctly in line with how the employee is choosing to take their shared leave.

 

Section H: Paternity Leave Record Keeping

 

Should an employee take paternity leave, the employer must keep a record of the following:

 

a. Start date of the statutory paternity pay

 

b. Paternity payments made – amount and date

 

c. Any paternity payments that have been reclaimed

 

d. Weeks where the employer did not make paternity payments and the reason this happened

 

e. In the case of adoption, proof such as a letter from the adoption agency

These records will form part of the employer’s standard reporting to HMRC, and must be retained for a period of 3 years from the end of the tax year during which they were created.

 

 

Section I: Paternity Leave for Antenatal & Adoption Appointments

 

Employers should allow employees who are fathers or the partner of a pregnant woman or the intended parents of a surrogate baby to take unpaid time off work to attend a maximum of two antenatal appointments.

The time taken off for each appointment should not exceed six and a half hours and must include travel time. Generally, the employee should return to work if the appointment and travel take less than six and a half hours, unless otherwise agreed with the employer.

As an alternative to unpaid time off, an employee may choose to use annual leave to attend the appointment, or they may ask their employer if it is possible to make up the time taken. This will be at the employer’s discretion but you should ensure consistency in your approach to avoid complaints of unfair treatment.

The employee would not have the right to paid time off for antenatal appointments unless there is provision for this within their employment contract or the organisation’s paternity policy.

In the case of adoption, the ‘main’ adopter can take time off on a paid basis for up to five adoption appointments while their partner is entitled to take unpaid time off for up to two appointments.

 

Section J: Role of the Paternity Policy

 

Employees may have recourse to make a formal complaint or legal action if you fail to meet your duties during paternity leave, such as paying the full entitlement, or where the employee can show they have been subject to unfair treatment because of their paternity leave.

The most effective way to avoid disputes is to have a robust paternity policy in place which sets out the expectations and requirements on both the employer and the employee. A paternity policy sets out the procedures that an employer should follow, helps employees know what is expected of them and what in turn to expect from their employer, and protects against disciplinary and legal action.

A paternity policy should be written in consideration of any related legislation to suit the business’ needs while supporting employee wellbeing and should typically include eligibility for paternity leave and pay, e.g. being an employee with a certain length of service; details of paternity leave and pay, e.g. how long is paternity leave and how much will an employee be paid; how and when to give notice; paternity leave in the case of adoption; rights during paternity leave; and return to work rights.

Any paternity policy should be supported with training of relevant personnel, including HR and line managers to ensure effective implementation and handling of paternity leave and pay matters, and return to work.

 

Section K: Summary

 

Paternity leave in the UK allows eligible employees, typically fathers or partners of the mother, to take time off work following the birth or adoption of a child. The statutory entitlement is either one or two consecutive weeks, which must be taken within 56 days of the child’s birth or adoption placement.

Employers in the UK must ensure compliance with legal obligations related to paternity leave, including providing the correct amount of leave and pay. Failure to meet these obligations can lead to legal risks, such as claims of discrimination or unfair dismissal. Employers must also consider the impact of paternity leave on business operations, particularly in smaller companies where the absence of a key employee can have a more significant effect.

Effective communication is essential. Employers should have clear policies in place and ensure employees are aware of their rights and the process for requesting paternity leave. By supporting employees through this period, employers can foster a positive workplace culture, reduce the risk of disputes, and promote employee retention.

 

Section L: Need Assistance?

 

Effective management of paternity leave requires careful planning and an infrastructure that supports both compliance with your duties under law and the wellbeing of your employees.

DavidsonMorris are experienced employment law specialists offering guidance and support to employers in relation to paternity leave, pay and rights. To discuss management and compliance with your duties, contact us.

 

Section M: Paternity Leave FAQs

 

What is the eligibility criteria for paternity leave in the UK?

To be eligible for paternity leave, an employee must have been continuously employed by the company for at least 26 weeks by the end of the 15th week before the baby is due or the child is placed for adoption. Additionally, the employee must be either the biological father, the mother’s or adopter’s partner, or the intended parent in a surrogacy arrangement.

 

How long can an employee take paternity leave?

Eligible employees can take either one or two consecutive weeks of paternity leave. This leave must be taken within 56 days of the child’s birth or adoption placement.

 

Can an employee split their paternity leave?

Paternity leave must be taken in a single block of either one week or two consecutive weeks. It cannot be split into separate days or weeks.

 

Is paternity leave paid, and how much will employees receive?

Paternity leave is usually paid. Eligible employees are entitled to Statutory Paternity Pay (SPP), which is currently £172.48 per week or 90% of their average weekly earnings, whichever is lower. Employers may choose to offer more generous pay through contractual arrangements.

 

Can an employer refuse paternity leave?

An employer cannot refuse statutory paternity leave if the employee meets the eligibility criteria and provides the correct notice. However, if the employee does not meet the criteria, they are not entitled to statutory paternity leave.

 

What notice must an employee give to take paternity leave?

Employees must inform their employer at least 15 weeks before the baby is due or the child is placed for adoption. They need to specify the intended start date and whether they will be taking one or two weeks of leave.

 

What happens to an employee’s job while they are on paternity leave?

An employee is entitled to return to the same job on the same terms and conditions after paternity leave. They are also protected against unfair treatment or dismissal because of taking paternity leave.

 

Can paternity leave be taken after adoption?

Paternity leave applies in cases of adoption as well. The same eligibility criteria and rights apply, whether the child is biologically related or adopted.

 

How does Shared Parental Leave differ from Paternity Leave?

Shared Parental Leave (SPL) allows both parents to share up to 50 weeks of leave and 37 weeks of pay after the birth or adoption of a child. Paternity leave is a separate entitlement that only allows the father or partner to take one or two weeks off.

 

Can an employee work while on paternity leave?

Generally, employees are not expected to work while on paternity leave. However, they may be allowed to work up to 10 “Keeping in Touch” (KIT) days without ending their paternity leave or pay.

 

Is paternity leave available to self-employed workers?

Statutory paternity leave and pay are only available to employees. Self-employed workers are not entitled to these benefits, though they may be eligible for other forms of parental support or benefits.

 

Can an employee change the start date of their paternity leave?

An employee can change the start date of their paternity leave, but they must give their employer at least 28 days’ notice of the new start date.

 

Section N: Glossary

 

 

Term	Definition
Paternity Leave	A statutory right allowing eligible employees to take time off work following the birth or adoption of a child.
Statutory Paternity Pay (SPP)	A government-mandated payment made to eligible employees during paternity leave, set at £172.48 per week or 90% of average weekly earnings, whichever is lower.
Eligibility Criteria	The conditions an employee must meet to qualify for paternity leave, including length of service and relationship to the child.
Continuous Employment	A period during which an employee has worked for the same employer without a significant break, used to determine eligibility for various rights.
Shared Parental Leave (SPL)	An arrangement allowing parents to share up to 50 weeks of leave and 37 weeks of pay following the birth or adoption of a child.
Keeping in Touch (KIT) Days	Up to 10 days that an employee can work during paternity leave without affecting their leave or pay entitlement.
Adoption Placement	The official arrangement where a child is placed with adoptive parents, triggering eligibility for certain parental leave rights.
Statutory Rights	Legal entitlements provided to employees under UK law, including rights to leave, pay, and protection from unfair treatment.
Discrimination	Unfair treatment of an employee based on a protected characteristic, such as taking paternity leave, which is prohibited under UK law.
Grievance	A formal complaint raised by an employee regarding workplace issues, including disputes over paternity leave rights.

 

 

Section O: Additional Resources

 

UK Government – Paternity Leave and Pay
https://www.gov.uk/paternity-pay-leave
Comprehensive overview of paternity leave and statutory paternity pay, including eligibility criteria and how to apply.

 

ACAS – Paternity Leave and Pay
https://www.acas.org.uk/paternity-leave-and-pay
Advisory, Conciliation and Arbitration Service (ACAS) provides guidance on handling paternity leave requests, managing pay, and resolving disputes.

 

HMRC – Statutory Paternity Pay (SPP)
https://www.gov.uk/recover-statutory-payments
Information from HM Revenue & Customs on how statutory paternity pay is processed, and guidance for employers on reclaiming SPP.

 

Equality and Human Rights Commission – Your Rights at Work
https://www.equalityhumanrights.com/en/advice-and-guidance/your-rights-work
Detailed information on employees’ rights, including protection from discrimination related to paternity leave.

 

CIPD – Guide to Parental Leave
https://www.cipd.co.uk/knowledge/fundamentals/relations/family/parental-leave-factsheet
The Chartered Institute of Personnel and Development (CIPD) offers a detailed guide for HR professionals on managing paternity and other parental leave.