• Paternity Leave is up to two weeks’ leave, following the birth or adoption of a child.
• Paternity Leave can be taken to attend the birth of a child.
• It must be taken in blocks of a week.
• Paternity leave must be taken within the first 8 weeks of the birth and cannot be taken after Shared Parental Leave
• Eligible employees can receive Statutory Paternity Pay for up to two weeks.
• When a child is born, Paternity Leave and Statutory Paternity Pay can be taken by the biological father, the mother’s spouse or partner, including same sex partner.
• When a child is adopted, one parent can take Statutory Adoption Leave and Statutory Adoption Pay, and the other can take Paternity Leave and Statutory Paternity Pay.
• Statutory Paternity Pay is paid by the employer and reimbursed by HM Revenue and Customs.
• An employee who has taken Paternity Leave has the right to return to exactly the same job on the same terms and conditions after Paternity Leave.
• An employer must not subject an employee to a detriment or dismiss an employee for a reason relating to Paternity Leave.
• Employers may offer more generous provision than the legal minimum.
Length of paternity leave
Paternity Leave is a maximum of two weeks’ leave, following the birth of a child or the adoption of a child, taken in order to support the mother or care for the new child. It can be taken as a single week or two consecutive weeks. It cannot be taken as odd days or as two separate weeks.
Paternity Leave must be taken within 56 days (8 weeks) of the birth or adoption. If the baby is born earlier than expected, it must be taken within 56 days from the date the baby was due. This has the effect of extending the time frame of when paternity leave can be taken (ie. from the date of birth to 8 weeks following the expected date of childbirth)
Paternity Leave can be taken by the biological father, the mother’s husband, partner or civil partner or the adopter’s spouse, partner or civil partner, including parents who are eligible for a parental order following a surrogacy arrangement. They must have or expect to have responsibility for the child’s upbringing.
To qualify for Paternity leave, he or she must be an employee and have worked for the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth (EWC), and he or she must be employed by the same employer immediately before the birth. The in effect means he must have been employed before his partner became pregnant and must still be employed immediately before the birth.
The EWC is the week in which the baby is due. It starts on a Sunday. It is different from the actual week of childbirth. The EWC will be given on the MAT B1 certificate issued to the woman by her midwife or doctor when she is about 20 weeks pregnant.
In the case of adoption, he or she must be an employee and have worked for the same employer for 26 weeks ending with the week in which the adopter is notified of being matched with a child and he or she must be employed by the same employer on the day the child is placed for adoption.
The employee must give his or her employer notice of his or her intention to take Paternity Leave at the latest during the 15th week before the EWC or within seven days of the adopter being notified of being matched with a child. The notice must cover:
• The EWC
• the date the employee would like their leave to commence
• whether the employee intends to take one or two weeks leave
If the employer requests it, the employee must also give the employer evidence, in the form of a signed employee declaration that the paternity leave is being taken in order to care for the child or support the child’s mother. In addition, as soon as reasonably practicable after the child’s birth, the employee is required to provide a further written notice to their employer confirming the date of the child’s birth.
If an employee is adopting a child with their partner or having a baby through a surrogacy arrangement he or she must provide a declaration stating that the paternity leave is being taken to care for the child or support the other parent.
If he or she is also eligible to receive Statutory Paternity Pay, notice for Statutory Paternity Pay can also be given at the same time as notice for leave. Otherwise, the employee must give at least 28 days notice to receive Statutory Paternity Pay or, if it is not reasonably possible, notice must be given as soon as possible. He or she must notify their employer of the EWC, whether they wish to take one or two weeks’ leave and when they wish their leave to start. The notification must be in writing if the employer requests it in writing.
In the case of adoption, the employee must state the expected date of adoption, the date they wish to start Statutory Paternity Pay, whether they wish to take one or two weeks’ leave and the date the adopter was notified of being matched with a child.
Statutory Paternity Pay (SPP)
SPP is paid by the employer at a fixed rate (revised each April). The current rate for April 2023-2024 is £172.48 per week or 90% of average earnings (if that’s less). Average earnings are calculated in a set period known as the calculation period. SPP is paid less tax and National Insurance contributions in the normal way.
To receive SPP an employee must be eligible for Paternity Leave and have earned at least £123 per week (April 2023-2024) on average. Average earnings are calculated over a period of at least eight weeks up to and including the last normal pay day during or before the 15th week before the EWC or eight weeks up and including the week in which the adopter is notified of being matched with a child for adoption.
In order to claim Statutory Paternity Pay, an employee must give their employer a declaration of their entitlement. This can be given in the form of a self-certificate. A model self-certificate can be obtained here.
Employers can, if desired, also request a completed self-certificate as evidence of entitlement to Paternity Leave.
To claim Statutory Paternity Pay, the self-certificate must be given to the employer at least 28 days in advance of the date the employee would like his or her pay to start, or as soon as reasonably possible thereafter.
If requested by the employer, the employee should let the employer know the actual date of the child’s birth or the date the adoption placement took place, within 28 days or as soon as reasonably possible.
A model self-certificate for paternity leave for an adoption or surrogacy can be obtained here: Application for paternity leave and pay for a parent who is adopting or having a baby through surrogacy-sc4
Calculating average earnings for Statutory Paternity Pay (SPP)
Average earnings are calculated by reference to pay received in the calculation period. The calculation period is the eight-week period up to and including the qualifying week (which is the 15th week before the expected week of childbirth). Pay taken into account is any pay on which National Insurance contributions are payable. For example sick pay, overtime, retrospective pay awards and holiday pay will all need to be included.
For employees who are paid weekly, average weekly earnings are calculated by reference to the eight weeks up to and including the last pay day before the end of the qualifying week. To work out average earnings, employers should add together the pay received in those eight weeks and divide by eight.
If the employee is paid monthly, average weekly earnings are calculated by adding together the earnings received on the last normal monthly pay day before the end of the qualifying week and any earnings received after the last normal payday at least eight weeks before that. That figure should then be divided by the number of months’ earnings it covers, multiplied by 12 and then divided by 52. For most workers, the relevant payments will simply be the last two monthly payments received by the end of the qualifying week.
To help with these calculations, the government provides a useful online calculator which can be used to check eligibility and pay: Maternity, Adoption and paternity calculator for employers – GOV.UK (www.gov.uk)
The same calculator can be used for maternity and adoption pay.
Claiming SPP from HM Revenue and Customs
The amount which employers pay by way of SPP can be deducted from payments to HM Revenue and Customs for any PAYE tax, student loans and National Insurance contributions.
Small Employers’ Relief
The amount an employer can deduct depends on whether you are entitled to Small Employers’ Relief. If you are entitled to Small Employers’ Relief, you can deduct 103% of the SPP (and other statutory parental payments) you have paid to your employees. If not, you can deduct 92% of the SPP you pay.
Small Employer’s Relief is available to employers if your Class 1 National Insurance contributions for the last complete tax year before the qualifying week were £45,000 or less. You can deduct your statutory payments from your PAYE and National Insurance liabilities.
Employers may also apply to HM Revenue and Customs for an advance payment in respect of SPP if you will find it difficult to pay.
Employers can also call HM Revenue and Customs SMP Helpline on 0300 200 3500 for help with paying and reclaiming SPP.
It is obligatory for employers to keep records for three years after the end of the tax year in which the employee ended her paternity pay period.
If the baby is born before the employee has started paternity leave or SPP, the employee must notify their employer as soon as reasonably possible after the birth stating the date of the birth. The notice must be in writing if requested by the employer.
To claim SPP, the employee must also provide a declaration as above, see: Notice.
If the employee has already given notice for paternity leave and pay but their baby is born early, the employer must let their employer know (in writing if the employer so requests it) the date of birth.
If the employee has chosen to start paternity leave and SPP on the date on which the baby is born and s/he is at work that day, paternity leave and pay will start on the day after the date of birth even if this is before the 11th week before the EWC where the baby was born prematurely.
If the baby is born before the 15th week before the expected week of childbirth, an employee’s average weekly earnings will be based on their earnings in the 8 weeks immediately before the week in which the baby was born.
Miscarriage and stillbirth
Where a child is stillborn after 24 weeks of pregnancy, or where a child is born alive at any stage of the pregnancy but then dies (known as “neonatal death”), eligible employees will be entitled to paternity leave. Both parents may have the right to statutory parental bereavement leave and pay (in addition to maternity leave and paternity leave).
Paternity leave will not be available where the mother suffers a miscarriage before 24 weeks. Nor is parental bereavement leave. In those circumstances, the employee may be able to take annual leave, compassionate leave (if their employer provides it) or unpaid time off for dependants (see relevant notes on each of the above)
Entitlements during Paternity Leave
During Paternity Leave, an employee is entitled to all of their normal contractual terms and conditions as if they were not absent, apart from basic wages and salary. If they qualify, an employee will receive Statutory Paternity Pay during this period instead. Other benefits such as annual leave, health benefits, use of company property will continue as normal.
Right to return to the same job
An employee has the right to return to exactly the same job, on the same terms and conditions after Paternity Leave. The employee is also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while he or she was away.
Protection for Employees
Employers must not subject their employees to unfair treatment or dismiss an employee for a reason relating to Paternity Leave.
Best practice: Occupational Paternity Pay
It is good practice to consider whether you can offer paternity pay over and above the statutory minimum. Any contractual pay can top up the SPP which is reclaimed from HMRC.
A model paternity policy is part of this toolkit.
Paternity pay calculator
• Employment Rights Act 1996
• Paternity and Adoption Leave Regulations 2002
• Paternity and Adoption Leave (Amendment) Regulations 2006
• Paternity and Adoption Leave (Amendment) Regulations 2008
• Social Security Contributions and Benefits Act 1992
• Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002
Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.