Equal pay and conditions
In this guide:
- Prevent discrimination and value diversity
- Equality law and types of discrimination
- Avoid discrimination when recruiting staff
- Discrimination when deciding who to employ
- Sex, maternity and pregnancy discrimination
- Gender balance in STEM businesses
- Equal pay and conditions
- Gender reassignment discrimination
- Marriage and civil partnership discrimination
- Age discrimination
- Discrimination against disabled people
- Discrimination on the grounds of race
- Workplace discrimination due to religious belief, political opinion or philosophical belief
- Discrimination on the grounds of sexual orientation
- Discrimination over membership or non-membership of unions
- Monitoring equality and diversity - employer responsibilities
- Promoting equality and diversity
- Equality and contracting with the public sector
- Addressing gender imbalance in the STEM industry - Exploristics Ltd
- Promoting gender equality - Terex (video)
Equality law and types of discrimination
Preventing discrimination and the common areas of equality law.
It is unlawful to discriminate on the grounds of:
- sex
- pregnancy and maternity leave
- being married or in a civil partnership
- gender reassignment
- disability
- race
- age
- sexual orientation
- religious belief, similar philosophical belief or political opinion
- trade union membership or non-membership
- status as a fixed-term or part-time worker
Who the legislation applies to
The equality laws ban discrimination by all employers, regardless of their size, and offer protection against unlawful discrimination to:
- job applicants
- employees
- contract workers
In the field of employment and occupation the laws also ban discrimination by some service providers against their service users or prospective users, such as:
- institutions of further and higher education
- employment agencies
- providers of vocational training
- providers of vocational qualifications
The laws also ban discrimination by a number of other occupational bodies, such as:
- trade associations and trade unions against their members or prospective members
- the trustees and managers of occupational pension schemes against members or prospective members
- partnerships against their partners or prospective partners
The types of discrimination
There are generally four types of discrimination:
- direct discrimination - treating somebody less favourably on the grounds of sex, race, religion etc. This can also include treating somebody less favourably because of their association with a person who has a particular characteristic, eg a disabled person or a gay person, etc
- indirect discrimination - applying a rule to all individuals equally but which in practice causes greater disadvantage for members of one group compared to those in another, eg women compared to men, black people compared to white people, and which cannot be justified
- harassment - see bullying and harassment
- victimisation - treating someone unfairly because, for example, they plan to raise, or have raised, a discrimination-related grievance or they have supported someone else in raising such a grievance
The Equality Commission website provides further information about the definitions of discrimination.
Although some of the above also apply to discrimination against disabled people, there are also some other special types of disability discrimination - see discrimination against disabled people.
Is discrimination always unlawful?
The types of discrimination known as harassment and victimisation are always unlawful.
A decision that is directly discriminatory will normally be unlawful unless:
(a) in an age discrimination case, the decision can be objectively justified,
or
(b) in any other case, an employer can rely on a statutory exception, such as-- a genuine occupational requirement exception where the job needs to be done by a person who has a particular characteristic (eg the job holder needs to be a woman in order to preserve the decency and privacy of women service-users who may be undressed)
- a positive action exception where an employer is taking action to encourage members of an under-represented or disadvantaged group to apply for work with them (eg by adding the following statement to a job advertisement: "we would particularly welcome applications from Roman Catholics and women").
A rule or practice (eg a job selection criterion) that is indirectly discriminatory will normally be unlawful unless it can be objectively justified or is permitted by another statutory exception (eg an exception for positive action).
For example, if an employer has a general rule that puts women or people with a particular religious belief at a greater disadvantage compared to others but the reason for applying that rule is reasonably necessary and genuinely helps the employer to meet a legitimate aim, then the rule may be justified and lawful.
Where discrimination can occur
The equality legislation affects all areas of employment including:
- recruitment
- terms and conditions
- promotions and transfers
- the provision of training
- the provision of pay and benefits
- dismissal, retirement or redundancy
- occupational pensions
- work placement opportunities
- disciplinary procedures
- performance and attendance management procedures
- the way the work is arranged and performed
- the physical features of an employer's premises
- how employees behave towards one another (eg harassment and bullying)
Discrimination can also occur after an employment contract has ended, eg a former employee can bring a discrimination claim after they have left if they get an unfavourable reference because they threatened to bring a discrimination claim.
Industrial tribunal claims and discrimination
Aggrieved individuals have the right to bring their complaints of alleged discrimination in employment to the Fair Employment Tribunal, in the case of complaints of religious, similar philosophical belief or political discrimination, or to an industrial tribunal, in the case of all other equality grounds.
Any claim to an industrial tribunal will normally have to be brought by the claimant concerned within three months of the alleged discriminatory act occurring. However, in cases of religious, similar philosophical belief, or political discrimination, claims in the Fair Employment Tribunal normally have to be brought within three months of the claimant's date of knowledge of the alleged act of discrimination or within six months of the date of the alleged act, whichever is the earlier.
Mandatory Early Conciliation
Any person who is considering bringing a claim to a tribunal must first make an application to the Labour Relations Agency for Early Conciliation, giving the latter an opportunity to try to resolve the matter. When a person makes an Early Conciliation notification the normal tribunal time-limit clock will stop for a period up to one calendar month during which conciliation can take place. The Conciliation Officer will also have the power to extend for a further 14 days providing there is a reasonable prospect of an agreement and that both parties agree.
Furthermore, in the case of current employees, the tribunal would expect them to raise a formal grievance with you before bringing the claim. See managing conflict. If they fail to do so, it may reduce the amount of any compensation it may award to the employee by up to 50%.
Read more on handling grievances.
There are no length-of-service or age requirements for bringing a discrimination claim and claimants do not need to have left your employment nor even to be your employee (eg an unsuccessful job applicant may bring a complaint).
For their claim to succeed, the claimant will first need to prove the existence of facts from which the tribunal could conclude that you have committed an act of unlawful discrimination.
If the claimant is able to do this, you must prove to the tribunal that you did not commit the unlawful act.
If an industrial or fair employment tribunal does in fact find that unlawful discrimination has occurred, penalties can be high, since there is no statutory cap on compensation levels.
It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring - see monitoring equality and diversity - employer responsibilities and promoting equality and diversity.
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Avoid discrimination when recruiting staff
How to adhere to equality legislation during the recruitment process.
You must avoid discrimination during the recruitment and selection process. This is a legal requirement and also gives you the best chance of getting the right person for the job.
Fair recruitment and selection process
Remember that job applicants - ie people you don't actually employ - might be able to make an industrial tribunal claim against you if they believe you didn't select them for a job because you discriminated against them unlawfully.
When defending discrimination complaints, those employers who can provide evidence that demonstrates that they properly followed fair recruitment procedures will greatly increase their chances of persuading a tribunal that they did not discriminate unlawfully when making their selection decisions.
Detailed guidance on fair recruitment and selection
For detailed guidance on how to adopt and follow fair recruitment and selection procedures, download the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment (PDF, 443K).
Monitoring during recruitment
Note that businesses in Northern Ireland with more than ten employees (working 16 or more hours per week) must register with the Equality Commission and thereafter conduct monitoring of the community background and sex of their job applicants during recruitment. For this purpose, community background is a reference to whether people are members of the Protestant or Roman Catholic communities in Northern Ireland.
Download an Equality Commission step-by-step guide to fair employment monitoring (PDF, 410K).
Businesses meeting the above criteria are not required to monitor their job applicants under any other of the equality categories (such as race, disability, age, sexual orientation, etc.), but it is good practice to do this too and the Equality Commission encourages employers to do it.
For guidance on how to do this, download the Equality Commission's Guide to Employment Monitoring (PDF, 5.46MB).
Job descriptions and personnel specification
The Equality Commission strongly recommends that you prepare job descriptions and personnel specifications for the jobs in your organisation. These will help you to select the best person for each job and to explain your decisions in non-discriminatory terms, if you are later challenged.
When writing the job description and person specification, you should state clearly what tasks the person will have to do and what skills they will need. Job descriptions should accurately describe the genuinely essential duties of the post.
Personnel specifications should accurately describe the relevant, non-discriminatory, and objectively justifiable requirements to be met by the post-holder. The specification should not have any requirements that are not directly related to the job.
For example, for a position as a fork-lift truck driver, the job specification should not state that the successful candidate needs good written English as this is probably not essential for the job. However, in an editorial or administrative role this would be reasonable criterion.
Job advertisements
Employers should advertise all posts widely to ensure that as many eligible and suitably qualified candidates as possible have an opportunity to apply. It is unlawful for a job advertisement to specify that the applicant must be of a particular gender, race, etc - unless being of that gender, race, etc is a genuine occupational requirement. The circumstances in which an employer can rely on a genuine occupational requirement are narrowly defined. If you wish to rely on one, you should contact the Equality Commission for advice.
It is good practice to place an equal opportunities statement in job advertisements. You can find example statements in Chapter 10C of the Equality Commission's Unified Guide to Promoting Equal Opportunities in Employment (PDF, 410K).
Disability discrimination
It is unlawful to publish job advertisements that state or imply that any candidate's success depends to any extent on them not having, or not having had, a disability, or indicate the employer's reluctance to make reasonable adjustments. In addition, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements.
However, note that you can treat disabled people more favourably by advertising a job as being open only to disabled applicants. See discrimination against disabled people.
Age discrimination
To avoid age discrimination it is advisable not to use such phrases as "young and dynamic", "would suit someone who has just qualified", "minimum of ten years' experience" or "must be educated to degree level" unless the criterion or statement can be justified by the genuine needs of the job. If you are in doubt about being able to justify this, it would be better not to include or apply the criterion or statement. You could also contact the Equality Commission for advice.
Genuine occupational requirements
In some circumstances, you can state that being of a particular sex, race, religion/belief, age or sexual orientation is an occupational requirement for the job.
For example, it may be possible to set the following job criteria, so long as they are genuine:
- That only women can do a particular nursing or caring job because there is a need to preserve privacy or decency in situations where the job-holder will be in physical contact with other women who might reasonably object to men doing the job (eg helping patients to use toilet facilities, wash or dress themselves).
- In a religious organisation, it may be possible to require a job holder to be heterosexual, but only where the nature of the particular job and the context in which it is carried out requires this in order to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. So, the requirement might apply to a job in which the post-holder teaches Bible classes, but is unlikely to apply where there is no genuine religious aspect to the post-holder's job (eg they are a caretaker or book-keeper).
Job application forms
Employers should draft structured application forms for use in all recruitment exercises. If you use application forms, you should only ask applicants to provide relevant personal details that are relevant to the job selection criteria and to the administration of the selection process eg name, address etc.
See recruitment forms and templates.
However, there may be certain information you need to ask for in order to avoid discrimination during the selection process. For example, you should ask applicants to indicate if they have any special requirements should they be required to attend an interview or other selection process.
You should invite disabled applicants to indicate any relevant effects of their disability and to suggest adjustments that might help them overcome any disadvantages they might expect to encounter in the recruitment process.
If the applicant's response reveals or suggests that they are disabled, you should take reasonable steps to confirm whether or not they are disabled under the Disability Discrimination Act 1995. If so, you would have a legal duty to make reasonable adjustments, eg by holding the interview in an easily accessible room or allowing extra time for selection tests. Read Equality Commission guidance on recruiting people with disabilities.
If a disabled applicant asks for an application form in an accessible format you should comply with the request if it is reasonable to do so.
It is good practice to omit from application forms questions that relate to religious or similar philosophical belief, political opinion, race or ethnicity, nationality, marital, civil partnership or family status, age, sex or gender reassignment, and sexual orientation. Questions about job applicants' health or medical history should not be included in the application form. You may, however, seek and consider such information in appropriate circumstances.
For example, it is good practice to include questions about personal characteristics that are being collected wholly for equal opportunities monitoring purposes, such as sex, community background, race etc, on a diversity monitoring form that you can separate from the main application. Selectors should never be provided with this information.
Interviewing candidates
You should ensure that individuals who are called on to serve as interview panel members have received appropriate equal opportunities training. When interviewing people for a job there are certain questions you should not ask, such as whether a candidate is married, is a partner in a same-sex civil partnership, or has plans to have children.
If a candidate has informed you in advance that they are disabled you should ask them if there are any reasonable adjustments you might need to make to enable them to attend and participate in the interview.
Job interviews should be constructed in a structured and systematic way. The interview panel members should meet prior to the interview stage to agree and set:
- selection criteria and relative weightings, which are objectively justifiable and which directly and clearly correspond to the criteria described in the job description and personnel specification
- suitable interview questions which directly and clearly correspond to the criteria described in the job description and the personnel specification
- standardised system of scoring for use throughout the process
Read Equality Commission guidance on shortlisting and interviewing.
Selection testing
You should only use selection tests that provide relevant, reliable, and valid assessments of the applicant's abilities to perform the duties of the job, and which have been assessed as having no discriminatory impact on any of the statutory equality grounds.
You must make sure that tests for job applicants are not unlawfully discriminatory. For example, a written English test would discriminate against those whose first language is not English - although you could justify this if having good written English was necessary for the job.
You may have to make reasonable adjustments to adjust a test for a disabled applicant if they would otherwise be substantially disadvantaged compared with a non-disabled person, eg by giving an applicant who is disabled due to dyslexia more time to complete it.
Recruitment record-keeping
You must always be able to justify your decision to recruit a particular person. Therefore, you should document the recruitment process as much as possible. Documentation should be retained for at least twelve months.
This will help you provide evidence to an industrial or fair employment tribunal if you are faced with a claim of unlawful discrimination.
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Discrimination when deciding who to employ
It is unlawful for you to discriminate when making recruitment decisions.
The anti-discrimination laws make it unlawful for you to discriminate against job seekers on the grounds of age, sex, pregnancy and maternity leave, gender reassignment, sexual orientation, married/civil partnership status, disability, race, religious or similar philosophical belief and political opinion.
The general rule is that it is unlawful for you to make recruitment decisions on any of these grounds unless you can rely on a statutory exception as a defence, such as where the characteristic in question is a genuine occupational requirement, or, in cases of age discrimination, where the age criterion is justified, ie where it is shown to be a proportionate means of achieving a legitimate aim.
Outreach positive action
If your analysis of monitoring data reveals imbalances in applicant or staff numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement should still state that the final recruitment decision will be based solely on merit.
You should keep in mind that if you make a recruitment decision based on an individual's religion, race, sex, age or sexual orientation, etc even if that particular group is under-represented in your workforce, this would be considered direct discrimination and is likely to be unlawful.
It is, however, permissible to treat disabled people more favourably than non-disabled people when making selection decisions.
View Equality Commission guidance on taking positive action when recruiting people with disabilities.
View Equality Commission employer guidance on positive action in relation to all other equality grounds.
Checking the right to work in the UK
You must be sure that your chosen candidate has the right to work in the UK - see ensuring your workers are eligible to work in the UK.
However, you must take care to avoid race discrimination while carrying out the necessary checks.
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Sex, maternity and pregnancy discrimination
The types of sex discrimination and the rights of employees claiming to have suffered unfair treatment.
As well as outlawing discrimination against both men and women on the grounds of sex, the sex equality legislation also bans discrimination against women on the grounds of pregnancy and maternity leave.
Direct sex discrimination
Direct sex discrimination would occur if, for example, an employer refused to recruit a woman merely because she has two young children but where he would not refuse to recruit a man merely because he has two children of the same age.
Equally, direct sex discrimination against a man would occur if, for example, an employer refused to recruit or dismissed a man merely because he is a man.
Note that it may sometimes be permissible to state that a job holder must be male or female where being of that sex is a genuine occupational requirement - see discrimination during the recruitment process.
Direct pregnancy or maternity leave discrimination would occur if, for example, an employer dismissed a woman merely because she is pregnant, or because she asked to take maternity leave, or is exercising or has exercised her statutory right to take maternity leave.
Indirect sex discrimination
Indirect sex discrimination might occur if, for example, an employer stated that a job could only be done by someone willing to spend long periods of time away from home. This potentially discriminates against women who generally have greater childcare responsibilities than men and who, as a result, are likely to find it more difficult to spend time away from home. However, this kind of job criterion or condition would be lawful if it can be justified, for example, if the job was for a salesperson who had to go abroad to meet customers face to face, then there may be no reasonably alternative way of doing the job.
Sexual harassment
The law also makes sexual harassment - and harassment related to sex - explicitly unlawful in employment or vocational training. Sexual harassment can include inappropriate touching, requests for sexual favours, insensitive jokes of a sexual nature, displays of sexually explicit material, sexual innuendos or lewd comments or gestures. It also includes the circulation of lewd emails, even if this is not actually sent to the person being harassed. See sexual harassment guidance from the Labour Relations Agency.
For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.
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Gender balance in STEM businesses
Guidance on promoting gender balance in your STEM business.
In Northern Ireland, there is an ongoing gender gap in the science, technology, engineering and mathematics (STEM) industries.
The Equality Commission is working with the Department for the Economy (DfE) and the STEM Business Group to address this gender imbalance.
Benefits of promoting gender balance
Promoting diversity and enhancing the advancement of women can bring many benefits to your business including:
- a solution to skills shortages
- access to a broader base of talent
- increased innovation potential
- stronger financial performance
How you can improve gender balance
There are a number of ways that you can improve gender balance in your business.
If you are able to offer a placement or apprenticeship to a young person, they will gain important skills and improve the knowledge of their industry. Read more on providing work experience opportunities and training and development programmes.
In addition, you could sign up to the STEM Charter, which enables STEM businesses to demonstrate their commitment to equality of opportunity for women in employment.
You could also join the STEM Employers Equality Network, which brings employers together to discuss common employment issues, share good practice and identify challenges.
Read guidance from the Equality Commission about these STEM initiatives.
Case study
See how Belfast-based business Exploristics Ltd has addressed gender imbalance in the STEM industry.
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Equal pay and conditions
How to ensure you provide equal pay and conditions for male and female employees.
The Equal Pay Act (NI) 1970 promotes the principle that men and women should receive equal pay for equal work.
The Act aims to achieve its objective by incorporating an equality clause into all contracts of employment. The effect of this is to give each employee a contractual right to receive equal pay with any employee of the opposite sex who is doing:
(a) work that is the same or broadly similar (ie 'like work'); or
(b) work which is different, but which is of equal value in terms of the demands of the jobs (ie 'work of equal value'); or
(c) work which has been rated as equivalent under a job evaluation scheme (ie 'work rated as equivalent').'Pay' includes not only wages/salary but also all other contractual terms and conditions.
Therefore, even if you pay men and women the same basic pay for the same job, their pay may still be unequal if other benefits, eg a company car and private healthcare, are different for men and women.
Work may be different from that of a colleague of the opposite sex but it can be considered of equal value if it is similar or the same in terms of the demands of the job, or if it has been rated as equivalent under a job evaluation scheme.
Read more on equal pay - the law and best practice.
Claiming for equal pay
The law provides a procedure by which an employee can take a claim for equal pay to an industrial tribunal. In the course of an equal pay claim, you may be called upon to explain and justify your pay practices and arrangements.
Pay systems review is the most appropriate method of ensuring that a pay system delivers equal pay free from sex bias.
Download the Equality Commission code of practice on equal pay (PDF, 538K).
You may be able to justify differences in pay as long as you can show that gender was not a factor, eg you could pay more to employees who:
- work in an area where the cost of living is higher
- you want to retain as you would find it difficult to replace them
Gender pay gap reporting
Some large employers in Great Britain, ie those who employ more than 250 employees, are obliged to publish annually a report outlining information about the pay received by their male and female employees, such as the average differences between the pay that each group receives.
Employers in Northern Ireland are not yet obliged by law to do the same in respect of their employees here. However, it is anticipated that a similar duty will be imposed on some employers here at some future, but as yet unknown, date.
The Equality Commission would encourage employers to begin preparing for this now. Further advice can be obtained by contacting the Equality Commission directly.
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Gender reassignment discrimination
It's unlawful to discriminate against a job seeker or employee on the grounds that they have undergone, are undergoing or intend to undergo gender reassignment.
The Sex Discrimination (NI) Order 1976 makes it unlawful to discriminate against a job seeker or employee on the grounds that they have undergone, are undergoing or intend to undergo gender reassignment.
'Gender reassignment' means a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex, and includes any part of such a process.
If an employee is absent from work as a result of undergoing gender reassignment, it's also unlawful to treat that employee less favourably because of those absences than you would treat another employee who is off sick for another reason and a similar period.
Someone undergoing gender reassignment (a 'trans person') is likely at some stage in the process to be living or to begin living, as a member of the opposite sex. Inevitably this may entail a wish on their part to use the appropriate toilet or changing room facilities of their acquired sex.
As an employer, you will therefore need to make arrangements for this. It would be best to begin that process by discussing with the individual when they wish to change from using one set of facilities to the other and obtain their views about how they would like the issue to be handled. This will probably be during the 'social gender' transition when they present as members of the adopted sex even though they may not have completed the gender reassignment process.
Other employees may object to sharing facilities in these circumstances. While you may take account of their reasonable sensibilities, you should remind objectors that their feelings do not over-ride the legal rights of trans employees and, also, that a failure to treat others with dignity and respect could be seen as a breach of your equality policy and could amount to a disciplinary issue For advice on managing the situation where an individual is undergoing gender reassignment, you can call the Equality Commission Employer Helpline on Tel 028 90 500 600.
Once a trans person's gender reassignment has progressed far enough, they can eventually apply for a gender recognition certificate (GRC).
Once they have a GRC, they will be issued with a new birth certificate in the acquired gender. Where a full GRC is issued, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman). This would mean that you would have to treat a male-to-female trans person with a GRC as a woman and, for example, change your personnel records to reflect this.
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Marriage and civil partnership discrimination
Discrimination law in relation to marriage and civil partnerships.
You must not discriminate against a job seeker or employee because they are married or in a civil partnership.
Note that you must treat married employees and employees in civil partnerships in the same way. This means that any benefit such as private healthcare that is available to the spouses of employees should also be made available to employees' civil partners.
However, you can give benefits to employees who are married or in civil partnerships, but not to those who are unmarried or not in civil partnerships.
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Age discrimination
How employers can ensure they are following the law on age discrimination during the recruitment process and when exercising redundancy procedures.
It is generally unlawful for an employer to discriminate on the grounds of age - ie to treat individuals of any age less favourably than others on the grounds of age.
Age discrimination exceptions
There are limited circumstances when age discrimination can be lawful - for example:
- if there is a genuine occupational requirement - ie if you are producing a play that has parts for older or younger characters
- if there are legal reasons - ie where people must be at least 18 years old to serve alcohol
- if there is an objective justification - ie the employer must show real evidence that they are pursuing a legitimate aim and that the age restriction is a proportionate means of achieving that aim
Exceptions to age discrimination are rare and any should be considered carefully. Unjustified age discrimination can be challenged and there is no statutory limit on how much an industrial tribunal can award.
Direct age discrimination
Direct age discrimination would occur if, for example, an employer refused to employ people under the age of 30, believing them to be unreliable (as such a reason, being nothing more than a negative stereotype, is unlikely to be justifiable). It would also be direct age discrimination to have, without lawful justification, a compulsory retirement age for your employees (no matter whether it is set at 55, 60, 65 or 70 years old or at any other age).
Indirect age discrimination
Indirect age discrimination would occur if, for example, an employer for recruitment purposes only advertised jobs in magazines aimed at young people - this may discriminate against older people as they are less likely to subscribe to the magazine; or introduced a benefit only for employees with more than ten years' service - fewer younger employees are likely to have enough service to qualify. However, it might be possible to justify this type of discrimination if it was reasonably necessary to do it in order to achieve some legitimate business aim, such as rewarding staff experience or encouraging staff retention.
Note that it may be possible to state that a job holder must be of a certain age where being of that age is a genuine occupational requirement - see discrimination during the recruitment process.
For more information on these and other forms of discrimination, see equality law and types of discrimination.
Avoiding age discrimination
You should check that your recruitment process is non-discriminatory, eg aim to place advertisements in publications read by a range of age groups, and avoid using terms which imply a particular age group, such as 'mature', 'enthusiastic', 'highly experienced' or 'recent graduate'.
See discrimination during the recruitment process.
You must also make sure that your redundancy procedures are based on business needs rather than age, eg it could be discriminatory to select employees for redundancy solely on the basis of 'last in, first out'.
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Discrimination against disabled people
Understand how discrimination against disabled people can occur in the workplace and how to avoid it.
Under the Disability Discrimination Act 1995, it amounts to unlawful disability discrimination if an employer:
- Treats a disabled employee or job applicant less favourably than others because of their disability eg an employer refuses to employ someone even though they are suitable for the job, simply because they are a wheelchair user. This is direct disability discrimination, which can never be justified.
- Treats an employee or job-seeker less favourably than an appropriate comparator for a reason related to their disability eg an employer dismisses an employee primarily because of their high long-term absence levels but in a situation where the absence is related to their disability. This is referred to as disability-related discrimination. The appropriate comparator in these cases is a non-disabled person who is otherwise in a similar position to the disabled employee (e.g. a non-disabled employee with a similar absence record). However, the employer may be able to justify this type of discrimination in certain circumstances. This type of discrimination cannot arise if the employer didn't know and couldn't reasonably have been expected to know that the person had the disability.
- Fails to comply with its duty to make a reasonable adjustment for a disabled employee/job applicant. This type of discrimination cannot be justified and will be unlawful. However, the employer is not required to make reasonable adjustments if the employer doesn't know - or could not reasonably be expected to know - that the employee/applicant is disabled and is likely to be placed at a substantial disadvantage compared with non-disabled people. However, the employer must do all it can reasonably be expected to do to find out whether this is the case.
- Subjects a disabled employee to disability-related harassment eg making derogatory comments about disabled people generally, or making fun of an employee's particular disability.
Victimisation
Victimisation is also unlawful discrimination under the Act, ie it is unlawful for an employer to treat an employee (the victim - whether a disabled or non-disabled person) unfairly because they have, or the employer believes they have:
- brought proceedings, or given evidence or information in connection with proceedings brought under the Act
- done anything else under the Act
- alleged someone has contravened the Act
For example, a disabled employee alleges discrimination because his employer refuses to promote him. A colleague gives evidence at the tribunal on the disabled employee's behalf and, as a result, the employer makes the colleague redundant. This amounts to unlawful victimisation (as well as unfair dismissal).
The law also makes it unlawful to discriminate against a person because they associate with someone who is disabled.
See equality law and types of discrimination.
What counts as a disability?
In general, the Disability Discrimination Act 1995 considers someone to be disabled for the purposes of the Act if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
However, there are special rules for assessing whether people with progressive or recurring conditions meet the definition. Also, some people are automatically deemed to be disabled people, ie but only those with HIV infection, cancer, and multiple sclerosis and those with severe disfigurements.
Certain conditions are not regarded as impairments for the purposes of the Act, eg drug or alcohol addiction or a tendency to start fires, steal or physically abuse others, or visual impairments that are easily correctable by wearing glasses or contact lenses. The rule excluding drug addiction does not, however, exclude addiction to properly prescribed medications.
Read Equality Commission guidance on the different types of discrimination.
For more on discrimination law in general, see equality law and types of discrimination.
Reasonable adjustments
Employers have a legal duty to make reasonable adjustments to any provision, criterion or practice, or to physical features of their premises, to enable a disabled person to work or continue working if they would otherwise be at a substantial disadvantage compared with non-disabled workers.
Reasonable adjustments often involve little or no cost to your business. See how to provide access and facilities for disabled people.
You can also download the Equality Commission disability code of practice (PDF, 635K).
In addition, Disability Action's Hard at Work report highlights key actions needed to increase equality in employment for disabled people in Northern Ireland.
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Discrimination on the grounds of race
Understand how race discrimination can occur in the workplace and how to avoid it.
It's unlawful for an employer to discriminate against a job seeker or employee on the grounds of:
- race
- national origin
- ethnic origin
- colour
- nationality, including citizenship
It is deemed to be discrimination on the grounds of race to discriminate against a person because they are a member of the Irish Traveller Community.
Segregation of employees on the grounds of race is also unlawful.
Direct discrimination would occur if, for example, an employer refused to employ someone because they were not white or because they were English.
Indirect discrimination would potentially occur if, for example, an employer refused to employ people who could not write in English. That job criterion would not be unlawful, however, if it could be justified by reference to the needs of the job, for example, where an ability to read and write in English was necessary for the job.
Note that you may be able to state in a person specification that the job holder must be of a particular race, national origin, etc where being of that race, national origin etc is an occupational requirement - see discrimination during the recruitment process.
For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.
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Workplace discrimination due to religious belief, political opinion or philosophical belief
Overview of the forms of discrimination on the grounds of religious belief, similar philosophical belief or political opinion.
It is unlawful for an employer to discriminate against someone on the grounds of:
- religious belief
- similar philosophical belief
- political opinion
Discrimination on any of these grounds may include discriminating against a person because they do not hold a particular religious or similar philosophical belief or political opinion (eg discriminating against a person because they are an atheist) or because you believe that they may hold a particular belief or political opinion (eg discriminating against a person because you think, perhaps wrongly, that they are an atheist or a Protestant or a Catholic).
Discrimination on religious grounds
'Religious belief' for the purposes of equality law covers any religious belief or the absence of one (eg atheism).
Direct discrimination on religious grounds would occur if, for example, an employer-paid Christians more than non-Christians or dismissed a Christian (or an atheist) because they are married to a Muslim.
Indirect discrimination on religious grounds would potentially occur if a requirement for working in a butcher's shop was that employees had to handle pork and pork products. This would potentially indirectly discriminate against employees who are observant Muslims and Jews, who regard pork meat as unclean. However, this job duty might be justified if the butcher could show that it was reasonably necessary for all his employees to perform it, such as, for example, where there is no practicable way to arrange the work so that this one employee does not have to perform the job duty.
Furthermore, the law would not require the butcher to cease selling pork.
Discrimination on similar philosophical belief
Case law indicates that the phrase 'similar philosophical belief' covers beliefs about weighty and substantial aspects of human life and behaviour. They must also attain certain levels of cogency, seriousness, cohesion, and importance; and be worthy of respect in a democratic society, be not incompatible with human dignity, and be not in conflict with the fundamental rights of others. Examples might include humanism, pacifism, veganism, spiritualism.
Discrimination due to political opinion
Political opinion for the purposes of equality law covers any lawful political opinion and includes long-established opinions such as Communism, Socialism, Conservatism, Ulster Unionism, Irish Nationalism, and more recent ones such as being in favour of, or opposed to, gay marriage. However, the protection of the law does not apply to any political opinion supporting or accepting the use of violence for political ends connected with the affairs of Northern Ireland or for putting the public, or a section of the public, in fear.
Note that you may be able to state that a job holder must be of a particular religion or belief where being of that religion or belief is a genuine occupational requirement - see discrimination when recruiting staff.
For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.
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Discrimination on the grounds of sexual orientation
An overview of the forms of discrimination on the grounds of sexual orientation and the regulations that apply.
It is unlawful to discriminate against a job seeker or employee on the grounds of sexual orientation.
The term 'sexual orientation' means a sexual orientation towards:
- people of the same sex, ie gays and lesbians
- the opposite sex, ie heterosexuals
- the same and opposite sex, ie bisexuals
Direct discrimination would occur if, for example, an employer refused to employ a gay man because he is gay or a heterosexual woman because the employer believes wrongly that she is gay or bisexual.
Indirect discrimination would potentially occur if, for example, an employer is willing to accept applications for a job vacancy from all persons, regardless of their sexual orientation, but then only places the job advertisement in newspapers and magazines aimed at people who are gay or lesbian. As heterosexuals tend not to read such publications, they may be less likely to know that they can apply for the vacancy. The employer's action will be unlawful unless it can be objectively justified.
Note that you may be able to state that a job holder must be of a particular sexual orientation where being of that sexual orientation is a genuine occupational requirement - see discrimination during the recruitment process.
Read Equality Commission guidance on sexual orientation discrimination law.
For more on these types of discrimination and discrimination law in general, see equality law and types of discrimination.
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Discrimination over membership or non-membership of unions
The law surrounding discrimination over membership or non-membership of trade unions.
Refusal to employ
Employees have the right not to be refused employment because they:
- are or are not a member of a trade union
- used to be or used not to be a member of a trade union
- are planning to join or are refusing to join a trade union
Any withholding of a job offer for membership or non-membership of a trade union could lead to a claim at an industrial or fair employment tribunal. However, unlike other forms of unlawful discrimination, there is a limit of the amount of compensation that a tribunal can award.
Unfair treatment during employment
An employer must not treat workers - ie not just employees - unfairly during their employment where the treatment aims to prevent the worker:
- becoming a member of or leaving a trade union
- carrying out trade union activities at an appropriate time
- making use of trade union services at an appropriate time
'Trade union activities' includes voting in a trade union ballot but doesn't include taking industrial action.
An 'appropriate time' may be, for instance, outside working hours, during an employee's lunch break, or at a time when the employer has agreed that they may take part in trade union activities.
This unfair treatment could be, for example, threats of dismissal or refusal to promote.
Unfair dismissal
It is automatically unfair to dismiss an employee on trade union membership grounds, eg because they refused to leave a trade union.
For more on automatically unfair dismissals, see dismissing employees.
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Monitoring equality and diversity - employer responsibilities
How to measure the effectiveness of your equality and diversity policy.
Monitoring community background and sex
Employers with more than 10 employees, each working 16 or more hours per week, must register with the Equality Commission and must thereafter monitor the community background composition and sex of their job applicants and employees. They must also submit that information in a report to the Equality Commission every 12 months.
Furthermore, they must review that information every three years with a view to determining whether they are providing fair participation in employment to members of the Protestant and Roman Catholic communities in Northern Ireland. Where they determine that they are not providing such fair participation, they must consider taking affirmative action.
Read Equality Commission guidance about your monitoring duty.
Monitoring other equality grounds
For many employers, ie those in the private and voluntary sectors in particular, it is not, subject to the above, mandatory to monitor the other equality characteristics of your workforce, such as race, disability, age, or sexual orientation.
However, equal opportunities monitoring is an important means of demonstrating and implementing your commitment to promoting equality of opportunity on all equality grounds. It can assist you in identifying barriers that prevent access to employment and career development for certain groups of people and develop solutions, such as positive action plans or alternative policies and practices.
Therefore, it is good practice to monitor whether your equality policy is working effectively on all equality grounds.
For guidance on how to do this, download the Equality Commission's Guide to Employment Monitoring (PDF, 5.46MB).
If you find that it isn't working, ie you find that your workforce is not as diverse as it should be, it would be good practice to find out why and take action to improve the effectiveness of the policy.
For example, if you find that non-white people are underrepresented in your workforce, you could take positive action, eg include text in job advertisements encouraging members of minority ethnic groups to apply - see promoting equality and diversity.
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Promoting equality and diversity
How to promote equality of opportunity in your business.
In order to demonstrate your commitment to promoting equality of opportunity, you should develop a number of key policies and procedures in important areas. The Equality Commission recommends that you have written policies covering the following areas, at least:
- an equal opportunities policy
- a harassment policy and procedure
- a grievance procedure
- a recruitment and selection policy and procedure
- a maternity policy
- a flexible working policy and procedure
- an equal pay policy
The Equality Commission has developed model policies in relation to these matters and they are available, free-of-charge, to download from the Commission's website.
Putting your policies into practice - acting like an equal opportunities employer
Having such written policies is not enough. You must also implement them and continually take reasonably practicable steps to fulfil the commitments expressed in them. Declare your commitment by stating that your organisation is an equal opportunities employer and promoting this. Fulfil your commitment to equality by acting like like an equal opportunities employer by:
- developing employment policies that reflect the equality codes of practice
- having recruitment practices that are systematic, fair and objective
- training staff to make them aware of the policies and how they should apply them
- ensuring policies and practices are followed consistently across the organisation
- making reasonable adjustments for people that need them
- appointing the best person for a job role
You should also consider carrying out an equal pay review to assure yourself that your organisation is providing men and women with equal pay for equal work.
Equality and diversity policies
It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring.
One of the main ways of doing this is to have equality and diversity policies of the kinds noted above, backed up by an action plan to promote the policies and ensure that they are understood and followed across the business.
Your policies should set out your commitment to promote equality and diversity in areas such as recruitment, the working environment, and pay to tackle discrimination.
It should also:
- help your employees understand what you expect of them, eg to treat their colleagues and clients with dignity and respect
- set out your employees' legal rights and obligations
Read more on equality and diversity policies.
Employment equality plan
The employment equality plan is a tool that you can use to audit your employment and service provision policies and to plan what further work you will undertake to promote good practice. It may also show up areas of your work where you are not currently meeting the requirements of the law.
Read more on how to implement an equality plan.
Equal pay reviews
Many companies have instituted equal pay reviews which aim to ensure that their male and female staff enjoy equal pay for equal work.
Equal pay reviews may be carried out by someone within the company trained to deal with equality issues or they may be conducted by an outside team of specialists.
Download the Equality Commission code of practice on equal pay (PDF, 538K).
You can also see how to set the right pay rates.
Positive action during recruitment
If your analysis of your monitoring data reveals imbalances in applicant or employee numbers in terms of race, sex, etc you can use positive action to encourage members of the under-represented group to take up opportunities for work, eg by having job advertisements stating that applications from, for example, women, or minority ethnic groups will be particularly welcome. However, the advertisement must still state that the final recruitment decision will be based solely on merit.
You should keep in mind that if you make a recruitment decision based on an individual's religion, race, sex, age, or sexual orientation, even if that particular group is under represented in your workforce, this is direct discrimination and is likely to be unlawful.
View Equality Commission guidance on taking positive action when recruiting people with disabilities.
View Equality Commission employer guidance on positive action in relation to all other equality grounds.
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Equality and contracting with the public sector
If you want to supply goods or services to the public sector, you may need to show how you promote equality and diversity.
When carrying out their functions, almost all public-sector bodies, eg Northern Ireland Executive departments, local councils, health, and social care trusts, the NI Housing Executive and housing associations, the Education Authority, and others, are obliged to have due regard to the need to promote equality of opportunity between nine categories of people (ie between men and women generally, between people of different religious belief, political opinion, race, age, sexual orientation, marital status and between people who have dependants and those who do not and between people who are disabled and those who are not).
This duty is called Section 75, Northern Ireland Act 1998.
The Section 75 duty does not apply to private businesses in Northern Ireland.
However, the relevant public authorities will be considering it when awarding tenders and contracts for the supply of goods and services. If you are seeking to win such contracts, the relevant body may ask you to prove that you are an equal opportunities employer. They may do this by requesting that you provide them with a copy of your equality and diversity policy or prove that you are registered with the Equality Commission (if you are obliged to be registered) and that you have not been disqualified from seeking such contracts
Therefore you may have a competitive advantage if you already have good equality and diversity practices in place. It will certainly make it easier for you to answer questions about this if asked.
Note that if you have a contract with a public body, the duty to comply with Section 75 remains with that body. But, the contract might include a term or condition that requires you to periodically show that you continue to be an equal opportunities employer and service provider and that you are continually making good faith efforts to comply with your duties under equality law.
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Prevent discrimination and value diversity
Addressing gender imbalance in the STEM industry - Exploristics Ltd
How the Belfast-based business actively promotes equality and diversity to address gender imbalance in the Science, Technology, Engineering and Mathematics (STEM) industry.
Exploristics is a global provider of state-of-the-art software and biostatistics services to the life sciences sector. The Belfast-based company offers key support to organisations involved in the clinical development of new healthcare breakthroughs with its statistical consultancy expertise and flagship simulation software, KerusCloud.
Aiden Flynn, founder and Chief Executive Officer (CEO) of Exploristics, explains how they have addressed gender imbalance and welcomed the business benefits of equality and diversity.
Our challenge
“Exploristics operates mainly within the STEM (Science, Technology, Engineering and Mathematics) industry. The STEM industry traditionally struggles to attract female workers. This shortage can create a gender imbalance resulting in a less diverse workforce.”
“Women pursuing a career in the STEM industry can frequently experience the challenge of balancing a fast-moving technical career with being the primary caregiver when they have a family. This situation often leads to highly skilled women dropping out of the workforce and finding it difficult to return to progress in their future careers. This pattern is typical in many leadership teams, in addition to the pay disparity women can experience in STEM careers – an imbalance similarly seen across many other industry sectors.”
Addressing gender imbalance to increase equality and diversity
“We have taken proactive steps to attract talented individuals with highly transferrable skills to work for a small company, like Exploristics, in the face of a nationwide STEM skills shortfall. These measures include attracting those working in industry and academia with competitive pay and a supportive environment for career progression alongside flexible working practices.”
“Flexible working has been important for attracting women to work for Exploristics. We are acutely aware of the need for caregivers, who are often but not always women, to be able to choose how and where they work to suit their needs. In return, the benefits to the company include having the ability to recruit and retain exceptional talent. This talent includes women who may have commenced work in a part-time role but go on to work full-time, moving into leadership roles to provide female role models for other talented and ambitious women in the company.”
“We strive to offer a diverse and inclusive working environment where all staff have an equal opportunity to learn, grow, and achieve their full potential. This setting involves access to regular training both internally and externally to support ongoing career progression. We also offer management mentoring for women hoping to attain leadership roles to help to give them both role models, practical support, and the confidence to achieve.”
“At Exploristics, we want to enable and support everybody in caregiving roles irrespective of gender or sexuality. Therefore, flexible working is available to anyone within the organisation. We have also extended paternity leave to enable fathers to participate more fully in family life at that early stage and allow them to share caregiving responsibility. As a business, we acknowledge that it can be at that key stage when caregiving roles and career opportunities become at odds with one another.”
Support to deliver equality and diversity
“Other steps to improve equality and diversity include partnering with Diversity Mark, WISE, and the NI WISE Hub Pulsar. These organisations have helped provide a structured framework that has allowed us to benchmark ourselves with other companies and facilitate change through stepwise progression. These organisations have provided valuable support in bringing practical changes in our approach to creating a more diverse and equal workplace. We were delighted to achieve Diversity Mark’s Silver Charter Mark in March 2022. This award has driven improvements in achieving STEM diversity and marking our progress as a company. It has also helped us set new targets to improve diversity and inclusion.”
Our success
“Equality and diversity are important to Exploristics and play a role in our company’s success. We work in a fast-moving and highly competitive commercial sector. To grow as a business, we recognise the importance of a highly skilled workforce with in-depth technical knowledge and experience.”
“By focusing on equality and diversity, our company can draw on a wealth of different perspectives, experiences, and ideas that evolve from bringing together a diverse team of talented people with a common goal of driving innovation.”
“We have seen more women applying for places within our graduate analytics academy, aiming for roles as statisticians, programmers, and software developers. We have almost doubled our workforce and now have more women than men working for us at these levels. Many of our projects rely on the number of statisticians available, so this investment in people has allowed the company to take on more work and increased turnover and profitability.”
“Our female staff provide excellent role models for all women who stay in STEM to pursue a career. They show them that their contribution is valuable to the sector, and if they aim high, they can reap the rewards with a successful and satisfying career in STEM.”
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Prevent discrimination and value diversity
Promoting gender equality - Terex (video)
Sharon Martin, IT Service Delivery Manager at Terex, explains how promoting gender equality has benefited their business.
Sharon Martin, IT Service Delivery Manager at STEM (Science, Technology, Engineering and Mathematics) business Terex, explains how promoting gender equality has benefited their business.
Terex Corporation is a lifting and material handling solutions company.
Here, Sharon, colleague Eimear Holland, and Frank Fleming from the Equality Commission for NI explain how Terex has improved gender equality and why this has been beneficial for the business.
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Terms and conditions during maternity leave
In this guide:
- Maternity leave and pay
- The right to maternity leave
- Notification and confirmation of maternity leave
- When maternity leave can begin
- Terms and conditions during maternity leave
- Holiday and pensions during maternity leave
- Contact and work during maternity leave
- Changing a return date after maternity leave
- Returning to work from maternity leave
- Maternity leave and protection against detriment or dismissal
- Maternity pay
The right to maternity leave
Who qualifies for statutory maternity leave and how employers may offer enhanced leave rights.
All pregnant employees, ie those working under a contract of employment, are entitled to take up to 52 weeks of statutory maternity leave (SML) around the birth of their child. Employees automatically qualify for SML - it does not matter how long the employee has worked for you.
The 52-week SML period is made up of 26 weeks of ordinary maternity leave (OML) followed immediately by 26 weeks of additional maternity leave (AML).
Shared parental leave
In addition, an eligible mother can end her maternity leave early, and with her partner (this includes same-sex partners) or the child's father, opt for shared parental leave. Read more on shared parental leave and pay.
Compulsory maternity leave
An employee must take a minimum of two weeks' leave after the birth of her child - or four weeks if she works in a factory. You must not allow her to work during this time.
Multiple births
SML remains at 52 weeks regardless of the number of children resulting from a single pregnancy.
Stillbirth and miscarriage
If your employee gives birth to a stillborn baby, she is still entitled to maternity leave if the birth happens after 24 weeks of pregnancy.
If a miscarriage occurs before the end of the 24th week of pregnancy, the employee could take sick leave, or you could allow them to take compassionate leave, annual leave, or unpaid leave instead.
When a baby dies
If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to SML.
Parental Bereavement Leave and Pay
An employee may be eligible for Parental Bereavement Leave and Pay if they or their partner (this includes same-sex partners) either has a child who has died under 18 years old or had a stillbirth after 24 weeks.
Enhanced maternity leave
Employers can also provide enhanced maternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.
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Notification and confirmation of maternity leave
Employee and employer obligations regarding maternity leave notification.
Employees should tell you the following information no later than the end of the 15th week before the expected week of childbirth (EWC):
- The fact that she is pregnant.
- The expected date of the baby's birth.
- The intended start date of her maternity leave - this cannot be earlier than the beginning of the 11th week before the EWC. The expected date of birth is given on the MATB1 form that the employee receives from her registered doctor or midwife to confirm that she is pregnant. An employee can change the start date of her leave - see when maternity leave can begin.
The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the baby is born on a Sunday, that date is the first day in the EWC. The qualifying week is referred to as the 15th week before the EWC.
You may request notification of statutory maternity leave (SML) in writing.
SML entitlement if the 15-week deadline is missed
A woman who realises she is pregnant later than 15 weeks before the EWC week is still entitled to SML. In this event, the employee is expected to tell you the information above as soon as possible after the 15-week deadline.
SML notification and claiming statutory maternity pay (SMP)
The start date for SMP is normally the same as the start date for SML. Therefore, many employees will find it convenient to notify you of the start date of their SMP at the same time as they notify you of the start date of their SML.
If the employee plans to take SML, she only needs to provide you with a MATB1 form so you can work out whether she qualifies for SMP. If she does not qualify, you must return the MATB1 form to her because she will need it to claim Maternity Allowance.
See maternity pay.
Failure to give the required notification
If an employee does not give you the required notification, you can postpone the date she has chosen to start her SML.
You do not have to accept shorter notice, but you may have to make an exception where it was not reasonably practicable for the employee to give you notice any earlier.
For example, the employee may not be able to notify you properly if her baby is born much earlier than expected, eg well before the qualifying week. In these circumstances, she still qualifies for 52 weeks' SML. See when maternity leave can begin.
Encouraging early notification
It benefits both you and the employee if she notifies you well in advance of the 15th week before the EWC as you:
- know she is entitled to paid time off for antenatal care
- know that particular health and safety rules apply
- can start making arrangements to cover the period while the employee is away
For further guidance, see pregnancy at work.
Confirming the end date of SML
After receiving her notification, you must in turn notify the employee of the date on which her SML will end. This will normally be 52 weeks from the intended start of her SML.
You must give the employee this information within 28 days of her notification unless the employee has since changed the date her leave will start. In that case, you must notify her of the end date within 28 days of the start of her leave.
If you fail to give the employee proper notification and she wants to change her return date, she may not be obliged to comply with the eight-week notice requirement - see changing a return date after maternity leave.
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When maternity leave can begin
Beginning maternity leave and reasons why the start date may need to be changed.
An employee can choose to begin her statutory maternity leave (SML) any time from 11 weeks before the expected week of childbirth (EWC) up until the birth itself.
For the rules on notification for SML, see notification and confirmation of maternity leave.
Pregnancy-related absence
An employee can choose when to start her maternity leave. The exception is if she is absent from work for a pregnancy-related reason and the absence is after the beginning of the fourth week before the EWC - but before the date she notified you that she intended to start her leave. In this case, you can start the maternity leave as soon as she is absent.
In these circumstances, her SML will begin the day after the first day of her pregnancy-related absence.
Pregnant employees are entitled to paid time off for antenatal care - see employees' right to paid time off for antenatal care.
Childbirth before maternity leave has begun
SML also begins on the day after the day of childbirth if the birth occurs before:
- the notified SML start date
- the employee has notified you of any SML start date
This applies even if the birth takes place before the start of the 11th week before the EWC. In these circumstances, the employee should give you notice - in writing if you request it - of:
- the date of the birth if it has already taken place
- the original expected date of birth
The employee can provide you with evidence of the actual and expected dates of birth on the maternity certificate (MATB1) provided by her doctor or midwife.
Changing the start date of SML
After giving you her notification, the employee can change her intended start date as long as she notifies you of the new start date. She must do this by whichever is the earlier of:
- 28 days before the date she originally intended to start her leave
- 28 days before the new date she wants to start her leave
However, if it is not reasonably practicable for her to give you this much notice, she does not have to. In these circumstances, she should give you as much notice as possible. You may request this notification in writing.
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Terms and conditions during maternity leave
Certain terms and conditions continue to apply during statutory maternity leave.
An employee's contract of employment continues throughout her 52 weeks of Statutory Maternity Leave (SML) unless either you or the employee expressly ends it or it expires.
During SML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment that would have applied to her had she been at work.
The only exceptions are terms relating to wages or salary - though you must pay her statutory maternity pay if she's eligible. See maternity pay.
Contractual terms and conditions
Examples of contractual terms and conditions that continue during SML include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
- childcare vouchers
- contractual annual leave (any annual leave the employee receives above the minimum 5.6 weeks per annum)
Whether or not you should pay a bonus to an employee on SML depends on the type of bonus and the terms of the particular bonus scheme. You should ensure that you do not withhold any bonus simply because the employee is pregnant or is on maternity leave.
An employee on SML may receive contractual pay if she works on a keeping-in-touch day - see contact and work during maternity leave.
Continuous employment, length of service, and maternity leave
SML does not break the continuity of employment.
This means the entire SML period counts towards an employee's period of continuous employment when determining eligibility for other statutory employment rights, eg the right to a redundancy payment.
Both ordinary maternity leave and additional maternity leave count for assessing seniority and personal length-of-service payments, such as pay increments, under their contracts of employment.
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Holiday and pensions during maternity leave
An employee's contractual benefits during maternity leave.
During statutory maternity leave (SML), an employee continues to accrue annual leave.
She will also continue to benefit from any occupational pension scheme contributions for some of the SML period, ie during the paid maternity leave period.
Accrual of annual leave during maternity leave
An employee continues to accrue both their full statutory annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both ordinary maternity leave and additional maternity leave.
Employees will be able to carry over 5.6 weeks of leave into the next holiday year if they are unable to take the leave due to having taken maternity leave.
There is no legislative guidance on the right to carry over contractual leave in excess of the 5.6 weeks statutory leave.
An employee may not take annual leave during SML. You should instead allow the employee to take any untaken annual leave before and/or after her SML.
You cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
An employee's SML begins automatically if she gives birth during a period of annual leave - see when maternity leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Pension contributions during maternity leave
During ordinary maternity leave (whether or not the employee is receiving statutory and/or enhanced maternity pay) and any period of paid additional maternity leave, you should calculate the employer's contribution to an occupational pension scheme as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on additional maternity leave (AML) but not receiving any maternity pay, eg during the last 13 weeks of AML, you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during maternity leave, her contributions should be based on the amount of statutory and/or enhanced maternity pay she is receiving.
Employee contributions will therefore stop during any period of unpaid maternity leave - eg during the last 13 weeks of AML - but the occupational pension scheme rules may allow her to still make voluntary contributions.
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Contact and work during maternity leave
You can keep in contact with an employee during maternity leave and she may work up to ten keeping-in-touch days.
Reasonable contact
During the statutory maternity leave (SML) period you can make reasonable contact with an employee - and they may make contact with you.
In addition, an employee can work as a way of keeping in touch with workplace developments.
Contact with employees on SML
You can make contact with the employee by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the type of work and the employee's post
- any agreement that you might have reached with the employee before their leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on her return
The amount of contact that is reasonable depends on whether the employee prefers to have frequent or minimal contact with you. It is a good idea to discuss how you will keep in touch with your employee before she begins her SML.
Remember that you must keep an employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was at work, eg organisation changes or redundancy situations.
Keeping in touch (KIT) days
Employees may, in agreement with you and on a voluntary basis, do up to ten days' work - known as keeping in touch (KIT) days - under their contract of employment during their SML period without it affecting their right to statutory maternity leave or pay.
An employee cannot use a KIT day during compulsory maternity leave - see the right to maternity leave.
During KIT days, employees can work for you. This could be her normal work or could be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a KIT day counts as one KIT day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, she will have used up one of her KIT days.
If work on a KIT 'day' spans midnight, this counts as one KIT day - as long as this is the employee's normal working pattern.
Payment for KIT days
You and the employee should agree on how much you will pay her for a KIT day - this could be set out in her contract of employment or you may decide on a discretionary, case-by-case basis.
If the employee is receiving statutory maternity pay (SMP) when she works a KIT day, you must continue to pay her SMP for that week.
The employee can work under her contract of service for the employer paying her SMP for up to ten days (KIT days) during her maternity pay period without losing any SMP.
If the employee has used her ten KIT days and she does any further work, she will lose a week's SMP for the week in which she has done that work. If a week in her maternity pay period contains only KIT days, she would be paid SMP for that week. If a week in her maternity pay period contains the last KIT day and she does a further day's work in the same week, she will lose SMP for that week.
The SMP the employee receives for the week in which she works a KIT day can count towards any contractual pay you agree with her for working that KIT day. However, you could agree that she will receive her normal daily rate in addition to the SMP for that week.
Whatever the arrangement, you can still continue to recover SMP from HM Revenue & Customs (HMRC) as normal - see maternity pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage, as normal and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
KIT days: Protection against detriment or dismissal
An employee can only work a KIT day if she wants to and you agree to it - you cannot make an employee work a KIT day against her wishes, nor can the employee insist she works a KIT day if you do not agree to it.
It is unlawful for you to treat an employee unfairly or dismiss her because she:
- refused to work a KIT day
- worked - or considered working - a KIT day
If an employee believes that you have treated her unfairly or dismissed her under these circumstances, she may:
- resign and claim constructive dismissal
- raise a grievance with you, which may result in a tribunal claim for detrimental treatment, unfair dismissal and/or sex discrimination
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Changing a return date after maternity leave
Notification from employees regarding changes to their return date, or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date she returns to work will normally be the first working day 52 weeks after her statutory maternity leave (SML) began.
Returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), she must give you notice at least eight weeks before her new return date. You can accept less or no notice at your discretion.
For example, if an employee was due to return to work after 52 weeks SML on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, she would need to give you eight weeks' notice of the new date, ie by 14 March.
If you did not provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone her return by up to eight weeks. However, you may not postpone her return to a date later than the end of her 52-week SML period.
If the employee still comes to work during the period of postponement, you do not have to pay her.
Returning to work after the planned return date
If an employee wishes to return to work after the planned return date, she should give you notice of her new date of return at least eight weeks before the originally planned return date.
For example, if an employee originally notified you that she planned to return to work at the end of her ordinary maternity leave (ie after 26 weeks) on 1 October but - while on leave - decides that she wishes to take her full entitlement of 52 weeks, she must notify you of this eight weeks before 1 October, ie by 6 August.
If you didn't provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.
Employees who do not wish to return to work after maternity leave
An employee who does not wish to return to work at all after her SML must give you notice of this. This will be the same notice she would give for resignation in any other circumstances as required by her contract of employment.
However, as long as she specifies the date on which she wishes to terminate the contract (eg the date she was due back at work after SML), her SML continues.
In addition, if she terminates her contract before the end of the statutory maternity pay (SMP) period, you must continue to pay her SMP for the full 39-week SMP pay period, provided she has not started work for an employer who did not employ her in the 15th week before her expected week of childbirth.
Employees who don't return are not required to pay back any SMP they have received. See maternity pay.
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Returning to work from maternity leave
The automatic right to return to the same job depends on whether the employee is returning from ordinary maternity leave or additional maternity leave.
An employee is entitled to return to the same job that she had before going on statutory maternity leave (SML) if she only took ordinary maternity leave (OML), ie the initial 26-week period of SML. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of SML.
Returning to work after OML
An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.
If you prevent an employee from returning to work, she may make a complaint of unfair dismissal and sex discrimination to an industrial and fair employment tribunal.
If she returns to work but you do not give her old job back, she may:
- resign and claim constructive dismissal
- raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment
See maternity leave and protection against detriment or dismissal.
Returning to work after AML
An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.
However, if it is not reasonably practicable for you to let her return to her old job, you should offer her a job:
- that is both suitable and appropriate for her to do in the circumstances
- on terms and conditions that are no less favourable than those for her original job
If you offer the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.
If you offer the employee a job that does not fulfil the criteria, she may:
- resign and claim constructive dismissal
- raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment
You should try to consult with employees during their SML about any proposed changes to their jobs in preparation for their return. See contact and work during maternity leave.
Taking parental leave after SML
Employees who qualify for parental leave may take some of this leave immediately following the end of their SML.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it is not preceded by any AML
If the parental leave period is for longer than four weeks and/or is preceded by a period of AML, the employee is treated as though they were returning to work after AML. See parental leave and time off for dependants.
Breastfeeding
Your health and safety obligations towards a breastfeeding employee are the same as they were when the employee was pregnant.
Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.
You must provide a suitable area where a breastfeeding employee can rest. It should:
- include somewhere to lie down if necessary
- be hygienic and private so they can express milk if they choose to - toilets are not a suitable place for this
- include somewhere to store their milk, eg a fridge
See breastfeeding and the workplace.
Pregnancy during SML
If a woman becomes pregnant during her SML, she must notify you of this in the normal way - see notification and confirmation of maternity leave.
It is possible for her subsequent period of SML to begin as soon as the current one ends. In these circumstances, her rights on her eventual return are the same as they would have been had she just taken a single period of SML.
Flexible working requests
An employee returning to work may make a request to work flexibly, eg to change start or finish times, work from home, or do part-time hours. If possible, you should discuss this with the employee prior to SML, or during the keeping in touch process. Read more on flexible working: the law and best practice.
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Maternity leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or sought to take statutory maternity leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, statutory maternity leave (SML).
Detrimental treatment and Statutory Maternity Leave
You must not subject an employee to any detriment by acting or deliberately failing to act, because she:
- sought to take SML
- availed of SML
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated her detrimentally under these circumstances, she can take a claim of sex discrimination to an industrial tribunal.
Redundancy during Statutory Maternity Leave
If a redundancy situation arises at any stage during an employee's SML, you may not be able to continue employing her under her existing contract of employment.
In these circumstances, you must offer her - before that contract ends - any suitable alternative vacancy you have. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must:
- be suitable and appropriate for her to do in the circumstances, and
- the capacity and place in which she is to be employed and the terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be unfair. She may also have a claim for sex discrimination.
However, if you end up making an employee on SML redundant because you had no suitable alternative work to offer her, the dismissal may be fair.
On dismissal, her SML period comes to an end, but her entitlement to statutory maternity pay (SMP) continues until the end of the 39-week SMP period - assuming it has not already ended.
You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.
Pay rises during SML
An employee on SML is entitled to benefit from any general improvements to the rate of pay, or other terms and terms, which are introduced for their grade or class of work - as if they had not been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work from maternity leave may make a request to work flexibly, eg to adjust their start or finish times, work from home or do part-time hours. See flexible working: the law and best practice.
Dismissal on or after return to work from Statutory Maternity Leave
The dismissal of an employee will be automatically unfair if you dismiss her - or select her for redundancy in preference to other comparable employees - solely or mainly because she:
- has taken SML
- benefited from the terms and conditions of employment to which she was entitled during that SML period
- failed to return from her SML on time because you failed to give her any or adequate notification of the end date of her leave - see notification and confirmation of maternity leave
Dismissal, selection for redundancy, or other detrimental treatment in these circumstances may also amount to sex discrimination, for which industrial tribunal compensation is uncapped.
However, a dismissal may be potentially fair if, on the employee's return from additional maternity leave:
- you could not offer her the old job
- you - or an associated employer - offered her suitable alternative employment but she unreasonably refused
See returning to work from maternity leave.
Dismissal on grounds unrelated to Statutory Maternity Leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - SML. If the reason for the dismissal is:
- largely or wholly unrelated to her SML
- not for any other reason that is unfair or unlawfully discriminatory
You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on maternity leave. You should ensure that you follow a fair dismissal procedure in doing so, including the statutory dismissal procedure.
However, make sure you inform them that their position is only for maternity cover before they start.
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Maternity pay
Eligibility for statutory maternity pay (SMP), how to recover SMP payments, and the option of enhancements to SMP.
Statutory maternity pay (SMP) is paid for up to 39 weeks and usually covers the first 39 weeks of an employee's maternity leave.
Eligibility for statutory maternity pay
To be eligible for SMP, a pregnant employee must meet certain qualifying conditions.
For more information, see Statutory Maternity Pay and Leave: eligibility and proof of pregnancy.
The meaning of the term 'employee' for SMP purposes is different from the meaning for statutory maternity leave (SML) and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SMP, even though they do not qualify for SML.
Statutory maternity pay rates and recovery
For the first six weeks you must pay your employee SMP a weekly rate equal to 90% of their average weekly earnings (AWE).
For the next 33 weeks you must pay them the lower of the following:
- The standard weekly rate of £184.03
- 90% of their AWE
You can recover some or all of your SMP payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions (NICs) liability.
Read more on statutory pay and leave.
Enhanced maternity pay
If you wish, you can offer enhanced maternity pay arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could:
- pay more than SMP over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, SMP for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these enhancements, eg the employee needs a year's continuous service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the SMP portion of any enhanced maternity pay.
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The start and duration of paternity leave - births and surrogacy births
In this guide:
- Paternity leave and pay
- The right to paternity leave - births
- The right to paternity leave - adoptions and surrogacy arrangements
- Employee notification of paternity leave - births
- Paternity leave notification for adoptions and surrogacy
- The start and duration of paternity leave - births and surrogacy births
- The start and duration of paternity leave - adoptions
- Contractual issues during paternity leave
- Returning to work from paternity leave
- Paternity leave and protection against detriment or dismissal
- Statutory paternity pay
The right to paternity leave - births
Who qualifies for statutory paternity leave for births and how employers may offer enhanced leave rights.
An employee qualifies for paternity leave of up to two weeks and pay provided they meet certain conditions:
- the biological father of the child
- the husband or partner of the mother or adopter (this includes same-sex partners)
- the child's adopter
- the intended parent (if you're having a baby through a surrogacy arrangement)
- has, or expects to have, responsibility for the child's upbringing
A partner includes the spouse or civil partner of the pregnant woman and a person, of either sex, in a long-term relationship with her. The right applies whether the child is conceived naturally or through donor insemination.
In addition, they must:
- Have at least 26 weeks' continuous employment with you ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week.
- Be working for you from the qualifying week up to the date of birth. If their contract ends before the birth, they do not qualify for paternity leave - unless they go on to work for an associated employer. If their contract ends after the birth of the baby, they retain their right to paternity leave (and pay if they qualify).
- Have notified you of their intention to take paternity leave - see employee notification of paternity leave - births.
- Be taking the time off to support the mother and/or care for the baby.
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
You should treat the employee as having the necessary length of service if:
- the baby is born earlier than the 14th week before the EWC
- the birth hadn't occurred early, the employee would have been employed continuously by you for the 26 weeks
If you think the employee does not qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - births and surrogacy births.
For information on how eligible employees should notify you that they intend to take paternity leave, see employee notification of paternity leave - births.
Multiple births and paternity leave
Paternity leave remains at two weeks regardless of the number of children resulting from a single pregnancy.
Stillbirths and paternity leave
If an employee's wife or partner gives birth to a stillborn baby, they are still entitled to paternity leave - but only if the birth happens after 24 weeks of pregnancy.
Death of mother
The employee is still entitled to paternity leave if they would have been entitled to it but for the fact that the mother of the baby has died.
Miscarriage and paternity leave
Where a pregnancy ends before 24 weeks and the child does not survive, the father (or mother's spouse, civil partner, or partner) will not be eligible for paternity leave. They may take sick leave, or you could consider allowing them to take annual leave, compassionate leave, or unpaid leave instead.
Death of baby during or after the day of birth
If the baby is born alive but then later dies, the employee is still entitled to paternity leave. Bereaved parents are also entitled to up to 2 weeks of absence within the 56 weeks following the death of a child through parental bereavement leave. This leave can be used immediately before or after paternity leave or at any time within the 56-week period. See Parental Bereavement Leave and Pay.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you may consider allowing all employees to take two weeks of paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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The right to paternity leave - adoptions and surrogacy arrangements
Who qualifies for statutory paternity leave for adoptions and surrogacy and how employers may offer enhanced leave rights.
To qualify for paternity leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions.
The right to paternity leave - UK adoptions
An employee qualifies for paternity leave when adopting a child from the UK if they:
- Are the spouse, civil partner, or partner (including same-sex partner) who are adopting a child jointly, or are the spouse, civil partner, or partner of someone adopting a child individually. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with the correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.
- Have - or expect to have - responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter.
- Are not taking statutory adoption leave and pay.
- Have been continuously employed by you for at least 26 weeks ending with the week in which they are notified of having been matched with the child - the qualifying week. The qualifying week starts on a Sunday and ends on a Saturday.
- Continue to work for you from the qualifying week to the date of the child's placement.
- Notified you when they want to take paternity leave no more than seven days after the adopter is notified that they've been matched with a child.
- Will be taking time off to support the adopter and/or to care for the child. They cannot take paternity leave for any other purpose.
However, an employee will not qualify for paternity leave if:
- they have previously taken shared parental leave or pay in respect of the child, or
- they have availed of the right to take paid time off to attend pre-adoption appointments
If you think the employee doesn't qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
The right to paternity leave - overseas adoptions
An employee qualifies for paternity leave when adopting a child from overseas if they:
- are either one of two parents jointly adopting a child or the spouse, civil partner, or partner of someone adopting a child individually
- have - or expect to have - responsibility for the child's upbringing with the other or main adopter
- are not taking statutory adoption leave and pay
- have worked for you continuously for at least 26 weeks by the end of the week that the adopter receives an official notification or by the time they want their paternity leave to begin, whichever is later
- have given you the correct notification - see employee notification of paternity leave - adoptions and surrogacy arrangements
- continue to work for you up until the point the child enters Northern Ireland
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - adoptions.
What is official notification for overseas adoptions?
Official notification is written notification issued by or on behalf of the relevant domestic authority (usually the Department of Health) that the authority either:
- is prepared to issue a certificate to the overseas authority dealing with the adoption of the child
- has issued a certificate and sent it to that authority
In either case, the notification certificate confirms that the other or main adopter:
- is eligible to adopt
- has been assessed and approved as being a suitable adoptive parent
The right to paternity leave - surrogacy arrangements
The intended parents in a surrogacy arrangement may be eligible for adoption leave and pay and paternity leave and pay where they are eligible for and intend to apply for a parental order (or have already obtained such).
If one of the intended parents is eligible for paternity leave and pay, they can take one week or two consecutive weeks of leave and pay. The leave and pay must be taken within the first 56 days of birth (ie before the baby is nine weeks old).
To qualify for paternity leave the intended parent must:
- Be the spouse, civil partner, or partner (including same-sex partner) of the intended parent who has elected to take adoption leave. A partner is someone who lives with the other intended parent in an enduring family relationship but is not an immediate relative.
- Be your employee.
- Have worked for you for 26 weeks by the end of the 15th week before the expected week of birth (known as the qualifying week).
- Be working for you from the qualifying week up to the date of birth.
- Be one of a couple who is eligible for and have applied for, or intend to apply for a Parental Order in respect of the child within six months of the birth.
- Expect to have the main responsibility for the upbringing of the child (with the other intended parent).
- Give the correct notice.
However, an employee will not qualify for paternity leave if they are taking adoption leave and pay or have already taken shared parental leave or pay in respect of the child.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could allow all employees to take paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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Employee notification of paternity leave - births
Employee and employer obligations for statutory paternity leave notification.
To qualify for paternity leave, an employee should notify you no later than the end of the 15th week before the expected week of childbirth (EWC) - or as soon as is reasonably practicable - of:
- the expected week of the baby's birth
- whether they wish to take one week's or two consecutive weeks' leave
- when they want their paternity leave to start - see the start and duration of paternity leave - births and surrogacy births
The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the birth date falls on a Sunday, that date is the first day in the EWC.
The employee does not have to give you any medical evidence of the pregnancy.
Once the notice is received by the employer, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration - see statutory paternity pay.
If you receive this declaration for payment no later than the end of the 15th week before the EWC, the employee has complied with the leave notification requirements anyway.
Notification of the actual birth date
The employee should tell you the actual date of birth - and in writing if you request it. However, the employee does not have to give you any medical evidence of the birth.
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Paternity leave notification for adoptions and surrogacy
Statutory paternity leave for an adoption or surrogacy arrangement notification obligations for employees and employers.
The notification requirements for paternity leave differ for surrogacy births and UK and overseas adoptions.
Paternity leave notification: UK adoptions
To qualify for paternity leave when adopting a child from within the UK, an employee should notify you no more than seven days after the adopter is notified they've been matched with a child:
- That they intend to take paternity leave.
- When they want their paternity leave to start - see the start and duration of paternity leave - adoptions.
- How much paternity leave they expect to take - see the start and duration of paternity leave - adoptions.
- The date the adopter was notified that they had been matched with the child.
- The date on which the child is expected to be placed for adoption. This date is shown on the matching certificate from the adoption agency.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
Once you receive employee notification, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Paternity leave notification: overseas adoptions
Employees intending to take paternity leave when adopting a child from overseas must give you notice in three stages that they intend to take paternity leave.
Employees must give you the information required in writing if you request it. If the employee is also entitled to statutory paternity pay (SPP), they must give you the evidence required at the same time.
First stage
In the first stage, the employee must inform you of:
- The date on which the other or main adopter received official notification. For an explanation of official notification, see the right to paternity leave - adoptions and surrogacy adoptions.
- The date the child is expected to enter Northern Ireland.
Where the employee already has the necessary 26 weeks' qualifying service when the adopter receives official notification, they must give you this information within 28 days of the adopter receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Where the employee receives official notification before they have the necessary qualifying service, they must give you notice within 28 days of completing the 26 weeks' qualifying service. Again, at this point, the employee should know roughly when the child will enter Northern Ireland.
Second stage
In the second stage, the employee must give you at least 28 days notice of the actual date they want their paternity leave (and statutory paternity pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Paternity leave cannot start before the child has entered Northern Ireland.
Employees can change their mind about the date on which they want their paternity leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third stage
For the third stage, which is after the child has entered Northern Ireland, the employee must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry.
If they are also claiming statutory paternity pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Paternity leave notification: surrogacy arrangements
The intended parent that will take paternity leave and/or statutory paternity pay must notify their employer of their entitlement by the 15th week before the expected week of birth. They must provide:
- The expected week of the child's birth.
- When they want their paternity leave to start. See the start and duration of paternity leave - births and surrogacy births.
- Whether one or two consecutive weeks' leave will be taken.
If requested by their employer, the employee must supply a declaration within 14 days of receipt of the request, that:
- He or she is taking paternity leave to care for the child and/or support the other intended parent.
- They satisfy the entitlement conditions for paternity leave.
- They are eligible for and intend to apply for a Parental Order in respect of the child (or have obtained such an order).
- They have not claimed adoption leave and/or statutory paternity pay. (Persons who claim adoption leave and/or pay are disqualified from claiming paternity leave and/or pay and vice versa).
As soon as practicable after the child is born the employee must notify you of the date of birth.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration. If the employee makes this declaration for statutory paternity pay, they have complied with the notification requirements.
If the employee is not eligible for statutory paternity pay but you still want written notification, you can ask the employee to give you a completed self-certificate Statutory Paternity Pay and Leave: becoming a birth parent (form SC3). You should accept this unless you have strong reasons for suspecting that it is false.
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The start and duration of paternity leave - births and surrogacy births
Employees can choose when they want their paternity leave to begin but can change this date if they give enough notice.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
The duration of paternity leave remains the same regardless of the number of children resulting from a single pregnancy.
When can an employee start their paternity leave?
An employee cannot start their paternity leave until the birth of the baby. Otherwise, an employee can choose to start their leave:
- On the actual date of the baby's birth (whether earlier or later than expected).
- On a date - as the employee has notified you - falling a specified number of days after the actual birth date (whether earlier or later than expected).
- On a date - as the employee has notified you - falling after the first day of the expected week of childbirth (EWC). If the baby is born later than this date, they must delay their leave until the date of the actual birth.
Employees must give you the required notice of their paternity leave - see employee notification of paternity leave - births and employee notification of paternity leave - adoptions and surrogacy arrangements.
If an employee specifies the date of birth as the day they wish to start their leave and they are at work on that day, their leave will begin on the next day.
Changing the start date of paternity leave
In circumstances where the employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of birth, at least 28 days before the first day of the EWC
- a particular date, 28 days before that date
- a specified number of days after the birth, at least 28 days before the date falling the same number of days after the first day of the EWC, eg if the employee wants to start their leave 14 days after the birth and the EWC begins on 16 July, they must notify you of the new date on 2 July, ie 28 days before 14 days after 16 July
If they cannot give the notice in time, they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
What's the latest the employee can take leave?
As long as the employee has given the required notice, their paternity leave can start on any day of the week. However, their leave must finish:
- within 56 days of the actual birth date
- if the child is born earlier than expected, between the birth and 56 days from the first day of the EWC
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The start and duration of paternity leave - adoptions
How an employee can choose and change leave dates for statutory paternity leave for adoptions.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
Choosing the start date of paternity leave - UK adoptions
Paternity leave (and pay) can begin any time from the date of the child's placement with the adopter but must be completed within 56 days of this date.
The employee can choose to begin paternity leave on one of the following:
- The date on which the child is placed with the adopter, even if this is earlier or later than the expected date of placement. If the employee is at work on that date, their leave begins on the day after.
- A predetermined date after the expected date of placement.
- A date falling a specified number of days after the expected date of placement.
Changing the start date of paternity leave - UK adoptions
In the circumstances where an employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of placement, at least 28 days before the expected date of placement
- a particular date, 28 days before that date
- a specified number of days after the placement, at least 28 days before the date paternity leave is expected to then commence
If they cannot give the notice in time (eg the adoption agency alters the date of placement at short notice), they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.If you are unable to agree on the dates of paternity leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Choosing the start date of paternity leave - overseas adoptions
An employee adopting a child from overseas may choose to start their paternity leave from:
- the date that the child enters Northern Ireland
- a fixed date which is later than the date the child enters Northern Ireland
They must complete their leave within 56 days of the date the child enters Northern Ireland. They can start their leave on any day of the week.
Paternity leave is not meant to be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Changing the start date of paternity leave - overseas adoptions
If the employee wants to change the start date of their paternity leave, they must give you 28 days notice of the change.
You can ask for this notification in writing.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
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Contractual issues during paternity leave
Almost all existing terms and conditions continue to apply during statutory paternity leave.
An employee's contract of employment continues throughout paternity leave unless either you or the employee expressly ends it, or it expires.
Terms and conditions during paternity leave
During paternity leave an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except for the terms relating to wages or salary (unless their contract provides otherwise).
Examples of contractual terms and conditions that continue during paternity leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Continuous employment and paternity leave
Paternity leave does not break the continuity of employment.
Similarly, paternity leave counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
It also counts towards assessing seniority and personal length-of-service payments, such as pay increments, under the contract of employment.
Accrual of annual leave
An employee continues to accrue statutory - and any contractual - annual leave entitlement throughout paternity leave.
An employee may not take annual leave during paternity leave - but may take it immediately before or after paternity leave.
Contributions to a pension scheme
While your employee is on paternity leave, you should calculate employer contributions to their pension scheme as if they are working normally and receiving normal pay for doing so. This is regardless of whether or not the employee is receiving ordinary statutory and/or enhanced paternity pay.
If the rules require employee contributions to continue during paternity leave, the employee's contributions should be based on the amount of ordinary statutory and/or contractual paternity pay they are receiving.
Employee contributions will therefore stop if the employee is not receiving any paternity pay - but the pension scheme rules may still allow them to make voluntary contributions.
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Returning to work from paternity leave
An employee returning to work at the end of statutory paternity leave is entitled to return to the same job.
An employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent on paternity leave.
They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they are away.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay.
Return to work where parental leave is taken immediately after paternity leave
Employees who qualify for parental leave may take some of this leave immediately after the end of their paternity leave - see parental leave and time off for dependants.
A period of parental leave of four weeks or less has no impact on the employee's right of return.
An employee who takes a period of parental leave of more than four weeks straight after the end of their paternity leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them to do in the circumstances
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned. You should put the offer in writing and retain a copy. The offer should be as detailed as possible.
If you offer the employee a job that does not fulfil the above criteria, the employee may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their paternity-parental leave about any proposed changes to their job in preparation for their return.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to work from home or do part-time hours. Read more on flexible working: the law and best practice.
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Paternity leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take statutory paternity leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take paternity leave.
Detrimental treatment and paternity leave
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take paternity leave
- availed ofpaternity leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you normally would have made available to the employee.
If an employee believes you have treated them detrimentally under these circumstances, they may raise a grievance with you. This may result in an industrial tribunal claim for detrimental treatment if you fail to address it.
Dismissal and paternity leave
You must not:
- dismiss an employee - or select them for redundancy - because they took, or sought to take paternity leave
- prevent an employee from returning to work after their paternity leave
If you dismiss an employee in these circumstances, they may take a complaint of unfair dismissal to an industrial tribunal - regardless of their length of service.
Redundancy during paternity leave
If there is a redundancy situation at the same time as an employee's paternity leave, you must treat them the same as any other employee under the circumstances. This might be consulting them about the redundancy or considering them for any other suitable job vacancies.
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Statutory paternity pay
Who qualifies for SPP, how to recover SPP payments, and offering SPP enhancements.
For information about eligibility criteria for statutory paternity pay (SPP) see statutory paternity pay and leave.
(Note that in Northern Ireland, in exceptional cases, statutory paternity pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of paternity leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply).
Note that the meaning of the term 'employee' for SPP purposes is different from the meaning of paternity leave and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SPP, even though they do not qualify for paternity leave.
Someone legally classed as a worker who is not entitled to statutory paternity pay might still want to take time off after a birth. You should discuss other options with them, for example, paid holiday or special leave paid or unpaid.
SPP rates and recovery
You must pay eligible employees the lower of:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your SPP payments from HM Revenue & Customs - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced paternity pay
If you wish, you can have enhanced paternity pay arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could:
- Pay full pay during the employee's paternity leave. However, you could also change the qualification criteria for this enhancement, eg the employee needs a year's continuous service.
- Pay paternity pay to all employees - regardless of whether or not they meet the statutory qualification criteria.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. Be careful when using discretion to avoid complaints of unfair treatment or discrimination.
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Paternity leave notification for adoptions and surrogacy
In this guide:
- Paternity leave and pay
- The right to paternity leave - births
- The right to paternity leave - adoptions and surrogacy arrangements
- Employee notification of paternity leave - births
- Paternity leave notification for adoptions and surrogacy
- The start and duration of paternity leave - births and surrogacy births
- The start and duration of paternity leave - adoptions
- Contractual issues during paternity leave
- Returning to work from paternity leave
- Paternity leave and protection against detriment or dismissal
- Statutory paternity pay
The right to paternity leave - births
Who qualifies for statutory paternity leave for births and how employers may offer enhanced leave rights.
An employee qualifies for paternity leave of up to two weeks and pay provided they meet certain conditions:
- the biological father of the child
- the husband or partner of the mother or adopter (this includes same-sex partners)
- the child's adopter
- the intended parent (if you're having a baby through a surrogacy arrangement)
- has, or expects to have, responsibility for the child's upbringing
A partner includes the spouse or civil partner of the pregnant woman and a person, of either sex, in a long-term relationship with her. The right applies whether the child is conceived naturally or through donor insemination.
In addition, they must:
- Have at least 26 weeks' continuous employment with you ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week.
- Be working for you from the qualifying week up to the date of birth. If their contract ends before the birth, they do not qualify for paternity leave - unless they go on to work for an associated employer. If their contract ends after the birth of the baby, they retain their right to paternity leave (and pay if they qualify).
- Have notified you of their intention to take paternity leave - see employee notification of paternity leave - births.
- Be taking the time off to support the mother and/or care for the baby.
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
You should treat the employee as having the necessary length of service if:
- the baby is born earlier than the 14th week before the EWC
- the birth hadn't occurred early, the employee would have been employed continuously by you for the 26 weeks
If you think the employee does not qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - births and surrogacy births.
For information on how eligible employees should notify you that they intend to take paternity leave, see employee notification of paternity leave - births.
Multiple births and paternity leave
Paternity leave remains at two weeks regardless of the number of children resulting from a single pregnancy.
Stillbirths and paternity leave
If an employee's wife or partner gives birth to a stillborn baby, they are still entitled to paternity leave - but only if the birth happens after 24 weeks of pregnancy.
Death of mother
The employee is still entitled to paternity leave if they would have been entitled to it but for the fact that the mother of the baby has died.
Miscarriage and paternity leave
Where a pregnancy ends before 24 weeks and the child does not survive, the father (or mother's spouse, civil partner, or partner) will not be eligible for paternity leave. They may take sick leave, or you could consider allowing them to take annual leave, compassionate leave, or unpaid leave instead.
Death of baby during or after the day of birth
If the baby is born alive but then later dies, the employee is still entitled to paternity leave. Bereaved parents are also entitled to up to 2 weeks of absence within the 56 weeks following the death of a child through parental bereavement leave. This leave can be used immediately before or after paternity leave or at any time within the 56-week period. See Parental Bereavement Leave and Pay.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you may consider allowing all employees to take two weeks of paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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The right to paternity leave - adoptions and surrogacy arrangements
Who qualifies for statutory paternity leave for adoptions and surrogacy and how employers may offer enhanced leave rights.
To qualify for paternity leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions.
The right to paternity leave - UK adoptions
An employee qualifies for paternity leave when adopting a child from the UK if they:
- Are the spouse, civil partner, or partner (including same-sex partner) who are adopting a child jointly, or are the spouse, civil partner, or partner of someone adopting a child individually. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with the correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.
- Have - or expect to have - responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter.
- Are not taking statutory adoption leave and pay.
- Have been continuously employed by you for at least 26 weeks ending with the week in which they are notified of having been matched with the child - the qualifying week. The qualifying week starts on a Sunday and ends on a Saturday.
- Continue to work for you from the qualifying week to the date of the child's placement.
- Notified you when they want to take paternity leave no more than seven days after the adopter is notified that they've been matched with a child.
- Will be taking time off to support the adopter and/or to care for the child. They cannot take paternity leave for any other purpose.
However, an employee will not qualify for paternity leave if:
- they have previously taken shared parental leave or pay in respect of the child, or
- they have availed of the right to take paid time off to attend pre-adoption appointments
If you think the employee doesn't qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
The right to paternity leave - overseas adoptions
An employee qualifies for paternity leave when adopting a child from overseas if they:
- are either one of two parents jointly adopting a child or the spouse, civil partner, or partner of someone adopting a child individually
- have - or expect to have - responsibility for the child's upbringing with the other or main adopter
- are not taking statutory adoption leave and pay
- have worked for you continuously for at least 26 weeks by the end of the week that the adopter receives an official notification or by the time they want their paternity leave to begin, whichever is later
- have given you the correct notification - see employee notification of paternity leave - adoptions and surrogacy arrangements
- continue to work for you up until the point the child enters Northern Ireland
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - adoptions.
What is official notification for overseas adoptions?
Official notification is written notification issued by or on behalf of the relevant domestic authority (usually the Department of Health) that the authority either:
- is prepared to issue a certificate to the overseas authority dealing with the adoption of the child
- has issued a certificate and sent it to that authority
In either case, the notification certificate confirms that the other or main adopter:
- is eligible to adopt
- has been assessed and approved as being a suitable adoptive parent
The right to paternity leave - surrogacy arrangements
The intended parents in a surrogacy arrangement may be eligible for adoption leave and pay and paternity leave and pay where they are eligible for and intend to apply for a parental order (or have already obtained such).
If one of the intended parents is eligible for paternity leave and pay, they can take one week or two consecutive weeks of leave and pay. The leave and pay must be taken within the first 56 days of birth (ie before the baby is nine weeks old).
To qualify for paternity leave the intended parent must:
- Be the spouse, civil partner, or partner (including same-sex partner) of the intended parent who has elected to take adoption leave. A partner is someone who lives with the other intended parent in an enduring family relationship but is not an immediate relative.
- Be your employee.
- Have worked for you for 26 weeks by the end of the 15th week before the expected week of birth (known as the qualifying week).
- Be working for you from the qualifying week up to the date of birth.
- Be one of a couple who is eligible for and have applied for, or intend to apply for a Parental Order in respect of the child within six months of the birth.
- Expect to have the main responsibility for the upbringing of the child (with the other intended parent).
- Give the correct notice.
However, an employee will not qualify for paternity leave if they are taking adoption leave and pay or have already taken shared parental leave or pay in respect of the child.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could allow all employees to take paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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Employee notification of paternity leave - births
Employee and employer obligations for statutory paternity leave notification.
To qualify for paternity leave, an employee should notify you no later than the end of the 15th week before the expected week of childbirth (EWC) - or as soon as is reasonably practicable - of:
- the expected week of the baby's birth
- whether they wish to take one week's or two consecutive weeks' leave
- when they want their paternity leave to start - see the start and duration of paternity leave - births and surrogacy births
The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the birth date falls on a Sunday, that date is the first day in the EWC.
The employee does not have to give you any medical evidence of the pregnancy.
Once the notice is received by the employer, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration - see statutory paternity pay.
If you receive this declaration for payment no later than the end of the 15th week before the EWC, the employee has complied with the leave notification requirements anyway.
Notification of the actual birth date
The employee should tell you the actual date of birth - and in writing if you request it. However, the employee does not have to give you any medical evidence of the birth.
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Paternity leave notification for adoptions and surrogacy
Statutory paternity leave for an adoption or surrogacy arrangement notification obligations for employees and employers.
The notification requirements for paternity leave differ for surrogacy births and UK and overseas adoptions.
Paternity leave notification: UK adoptions
To qualify for paternity leave when adopting a child from within the UK, an employee should notify you no more than seven days after the adopter is notified they've been matched with a child:
- That they intend to take paternity leave.
- When they want their paternity leave to start - see the start and duration of paternity leave - adoptions.
- How much paternity leave they expect to take - see the start and duration of paternity leave - adoptions.
- The date the adopter was notified that they had been matched with the child.
- The date on which the child is expected to be placed for adoption. This date is shown on the matching certificate from the adoption agency.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
Once you receive employee notification, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Paternity leave notification: overseas adoptions
Employees intending to take paternity leave when adopting a child from overseas must give you notice in three stages that they intend to take paternity leave.
Employees must give you the information required in writing if you request it. If the employee is also entitled to statutory paternity pay (SPP), they must give you the evidence required at the same time.
First stage
In the first stage, the employee must inform you of:
- The date on which the other or main adopter received official notification. For an explanation of official notification, see the right to paternity leave - adoptions and surrogacy adoptions.
- The date the child is expected to enter Northern Ireland.
Where the employee already has the necessary 26 weeks' qualifying service when the adopter receives official notification, they must give you this information within 28 days of the adopter receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Where the employee receives official notification before they have the necessary qualifying service, they must give you notice within 28 days of completing the 26 weeks' qualifying service. Again, at this point, the employee should know roughly when the child will enter Northern Ireland.
Second stage
In the second stage, the employee must give you at least 28 days notice of the actual date they want their paternity leave (and statutory paternity pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Paternity leave cannot start before the child has entered Northern Ireland.
Employees can change their mind about the date on which they want their paternity leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third stage
For the third stage, which is after the child has entered Northern Ireland, the employee must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry.
If they are also claiming statutory paternity pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Paternity leave notification: surrogacy arrangements
The intended parent that will take paternity leave and/or statutory paternity pay must notify their employer of their entitlement by the 15th week before the expected week of birth. They must provide:
- The expected week of the child's birth.
- When they want their paternity leave to start. See the start and duration of paternity leave - births and surrogacy births.
- Whether one or two consecutive weeks' leave will be taken.
If requested by their employer, the employee must supply a declaration within 14 days of receipt of the request, that:
- He or she is taking paternity leave to care for the child and/or support the other intended parent.
- They satisfy the entitlement conditions for paternity leave.
- They are eligible for and intend to apply for a Parental Order in respect of the child (or have obtained such an order).
- They have not claimed adoption leave and/or statutory paternity pay. (Persons who claim adoption leave and/or pay are disqualified from claiming paternity leave and/or pay and vice versa).
As soon as practicable after the child is born the employee must notify you of the date of birth.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration. If the employee makes this declaration for statutory paternity pay, they have complied with the notification requirements.
If the employee is not eligible for statutory paternity pay but you still want written notification, you can ask the employee to give you a completed self-certificate Statutory Paternity Pay and Leave: becoming a birth parent (form SC3). You should accept this unless you have strong reasons for suspecting that it is false.
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The start and duration of paternity leave - births and surrogacy births
Employees can choose when they want their paternity leave to begin but can change this date if they give enough notice.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
The duration of paternity leave remains the same regardless of the number of children resulting from a single pregnancy.
When can an employee start their paternity leave?
An employee cannot start their paternity leave until the birth of the baby. Otherwise, an employee can choose to start their leave:
- On the actual date of the baby's birth (whether earlier or later than expected).
- On a date - as the employee has notified you - falling a specified number of days after the actual birth date (whether earlier or later than expected).
- On a date - as the employee has notified you - falling after the first day of the expected week of childbirth (EWC). If the baby is born later than this date, they must delay their leave until the date of the actual birth.
Employees must give you the required notice of their paternity leave - see employee notification of paternity leave - births and employee notification of paternity leave - adoptions and surrogacy arrangements.
If an employee specifies the date of birth as the day they wish to start their leave and they are at work on that day, their leave will begin on the next day.
Changing the start date of paternity leave
In circumstances where the employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of birth, at least 28 days before the first day of the EWC
- a particular date, 28 days before that date
- a specified number of days after the birth, at least 28 days before the date falling the same number of days after the first day of the EWC, eg if the employee wants to start their leave 14 days after the birth and the EWC begins on 16 July, they must notify you of the new date on 2 July, ie 28 days before 14 days after 16 July
If they cannot give the notice in time, they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
What's the latest the employee can take leave?
As long as the employee has given the required notice, their paternity leave can start on any day of the week. However, their leave must finish:
- within 56 days of the actual birth date
- if the child is born earlier than expected, between the birth and 56 days from the first day of the EWC
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The start and duration of paternity leave - adoptions
How an employee can choose and change leave dates for statutory paternity leave for adoptions.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
Choosing the start date of paternity leave - UK adoptions
Paternity leave (and pay) can begin any time from the date of the child's placement with the adopter but must be completed within 56 days of this date.
The employee can choose to begin paternity leave on one of the following:
- The date on which the child is placed with the adopter, even if this is earlier or later than the expected date of placement. If the employee is at work on that date, their leave begins on the day after.
- A predetermined date after the expected date of placement.
- A date falling a specified number of days after the expected date of placement.
Changing the start date of paternity leave - UK adoptions
In the circumstances where an employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of placement, at least 28 days before the expected date of placement
- a particular date, 28 days before that date
- a specified number of days after the placement, at least 28 days before the date paternity leave is expected to then commence
If they cannot give the notice in time (eg the adoption agency alters the date of placement at short notice), they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.If you are unable to agree on the dates of paternity leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Choosing the start date of paternity leave - overseas adoptions
An employee adopting a child from overseas may choose to start their paternity leave from:
- the date that the child enters Northern Ireland
- a fixed date which is later than the date the child enters Northern Ireland
They must complete their leave within 56 days of the date the child enters Northern Ireland. They can start their leave on any day of the week.
Paternity leave is not meant to be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Changing the start date of paternity leave - overseas adoptions
If the employee wants to change the start date of their paternity leave, they must give you 28 days notice of the change.
You can ask for this notification in writing.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
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Contractual issues during paternity leave
Almost all existing terms and conditions continue to apply during statutory paternity leave.
An employee's contract of employment continues throughout paternity leave unless either you or the employee expressly ends it, or it expires.
Terms and conditions during paternity leave
During paternity leave an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except for the terms relating to wages or salary (unless their contract provides otherwise).
Examples of contractual terms and conditions that continue during paternity leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Continuous employment and paternity leave
Paternity leave does not break the continuity of employment.
Similarly, paternity leave counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
It also counts towards assessing seniority and personal length-of-service payments, such as pay increments, under the contract of employment.
Accrual of annual leave
An employee continues to accrue statutory - and any contractual - annual leave entitlement throughout paternity leave.
An employee may not take annual leave during paternity leave - but may take it immediately before or after paternity leave.
Contributions to a pension scheme
While your employee is on paternity leave, you should calculate employer contributions to their pension scheme as if they are working normally and receiving normal pay for doing so. This is regardless of whether or not the employee is receiving ordinary statutory and/or enhanced paternity pay.
If the rules require employee contributions to continue during paternity leave, the employee's contributions should be based on the amount of ordinary statutory and/or contractual paternity pay they are receiving.
Employee contributions will therefore stop if the employee is not receiving any paternity pay - but the pension scheme rules may still allow them to make voluntary contributions.
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Returning to work from paternity leave
An employee returning to work at the end of statutory paternity leave is entitled to return to the same job.
An employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent on paternity leave.
They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they are away.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay.
Return to work where parental leave is taken immediately after paternity leave
Employees who qualify for parental leave may take some of this leave immediately after the end of their paternity leave - see parental leave and time off for dependants.
A period of parental leave of four weeks or less has no impact on the employee's right of return.
An employee who takes a period of parental leave of more than four weeks straight after the end of their paternity leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them to do in the circumstances
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned. You should put the offer in writing and retain a copy. The offer should be as detailed as possible.
If you offer the employee a job that does not fulfil the above criteria, the employee may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their paternity-parental leave about any proposed changes to their job in preparation for their return.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to work from home or do part-time hours. Read more on flexible working: the law and best practice.
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Paternity leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take statutory paternity leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take paternity leave.
Detrimental treatment and paternity leave
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take paternity leave
- availed ofpaternity leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you normally would have made available to the employee.
If an employee believes you have treated them detrimentally under these circumstances, they may raise a grievance with you. This may result in an industrial tribunal claim for detrimental treatment if you fail to address it.
Dismissal and paternity leave
You must not:
- dismiss an employee - or select them for redundancy - because they took, or sought to take paternity leave
- prevent an employee from returning to work after their paternity leave
If you dismiss an employee in these circumstances, they may take a complaint of unfair dismissal to an industrial tribunal - regardless of their length of service.
Redundancy during paternity leave
If there is a redundancy situation at the same time as an employee's paternity leave, you must treat them the same as any other employee under the circumstances. This might be consulting them about the redundancy or considering them for any other suitable job vacancies.
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Statutory paternity pay
Who qualifies for SPP, how to recover SPP payments, and offering SPP enhancements.
For information about eligibility criteria for statutory paternity pay (SPP) see statutory paternity pay and leave.
(Note that in Northern Ireland, in exceptional cases, statutory paternity pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of paternity leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply).
Note that the meaning of the term 'employee' for SPP purposes is different from the meaning of paternity leave and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SPP, even though they do not qualify for paternity leave.
Someone legally classed as a worker who is not entitled to statutory paternity pay might still want to take time off after a birth. You should discuss other options with them, for example, paid holiday or special leave paid or unpaid.
SPP rates and recovery
You must pay eligible employees the lower of:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your SPP payments from HM Revenue & Customs - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced paternity pay
If you wish, you can have enhanced paternity pay arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could:
- Pay full pay during the employee's paternity leave. However, you could also change the qualification criteria for this enhancement, eg the employee needs a year's continuous service.
- Pay paternity pay to all employees - regardless of whether or not they meet the statutory qualification criteria.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. Be careful when using discretion to avoid complaints of unfair treatment or discrimination.
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UK adoptions: notification and confirmation of adoption leave
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Paternity leave and protection against detriment or dismissal
In this guide:
- Paternity leave and pay
- The right to paternity leave - births
- The right to paternity leave - adoptions and surrogacy arrangements
- Employee notification of paternity leave - births
- Paternity leave notification for adoptions and surrogacy
- The start and duration of paternity leave - births and surrogacy births
- The start and duration of paternity leave - adoptions
- Contractual issues during paternity leave
- Returning to work from paternity leave
- Paternity leave and protection against detriment or dismissal
- Statutory paternity pay
The right to paternity leave - births
Who qualifies for statutory paternity leave for births and how employers may offer enhanced leave rights.
An employee qualifies for paternity leave of up to two weeks and pay provided they meet certain conditions:
- the biological father of the child
- the husband or partner of the mother or adopter (this includes same-sex partners)
- the child's adopter
- the intended parent (if you're having a baby through a surrogacy arrangement)
- has, or expects to have, responsibility for the child's upbringing
A partner includes the spouse or civil partner of the pregnant woman and a person, of either sex, in a long-term relationship with her. The right applies whether the child is conceived naturally or through donor insemination.
In addition, they must:
- Have at least 26 weeks' continuous employment with you ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week.
- Be working for you from the qualifying week up to the date of birth. If their contract ends before the birth, they do not qualify for paternity leave - unless they go on to work for an associated employer. If their contract ends after the birth of the baby, they retain their right to paternity leave (and pay if they qualify).
- Have notified you of their intention to take paternity leave - see employee notification of paternity leave - births.
- Be taking the time off to support the mother and/or care for the baby.
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
You should treat the employee as having the necessary length of service if:
- the baby is born earlier than the 14th week before the EWC
- the birth hadn't occurred early, the employee would have been employed continuously by you for the 26 weeks
If you think the employee does not qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - births and surrogacy births.
For information on how eligible employees should notify you that they intend to take paternity leave, see employee notification of paternity leave - births.
Multiple births and paternity leave
Paternity leave remains at two weeks regardless of the number of children resulting from a single pregnancy.
Stillbirths and paternity leave
If an employee's wife or partner gives birth to a stillborn baby, they are still entitled to paternity leave - but only if the birth happens after 24 weeks of pregnancy.
Death of mother
The employee is still entitled to paternity leave if they would have been entitled to it but for the fact that the mother of the baby has died.
Miscarriage and paternity leave
Where a pregnancy ends before 24 weeks and the child does not survive, the father (or mother's spouse, civil partner, or partner) will not be eligible for paternity leave. They may take sick leave, or you could consider allowing them to take annual leave, compassionate leave, or unpaid leave instead.
Death of baby during or after the day of birth
If the baby is born alive but then later dies, the employee is still entitled to paternity leave. Bereaved parents are also entitled to up to 2 weeks of absence within the 56 weeks following the death of a child through parental bereavement leave. This leave can be used immediately before or after paternity leave or at any time within the 56-week period. See Parental Bereavement Leave and Pay.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you may consider allowing all employees to take two weeks of paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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The right to paternity leave - adoptions and surrogacy arrangements
Who qualifies for statutory paternity leave for adoptions and surrogacy and how employers may offer enhanced leave rights.
To qualify for paternity leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions.
The right to paternity leave - UK adoptions
An employee qualifies for paternity leave when adopting a child from the UK if they:
- Are the spouse, civil partner, or partner (including same-sex partner) who are adopting a child jointly, or are the spouse, civil partner, or partner of someone adopting a child individually. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with the correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.
- Have - or expect to have - responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter.
- Are not taking statutory adoption leave and pay.
- Have been continuously employed by you for at least 26 weeks ending with the week in which they are notified of having been matched with the child - the qualifying week. The qualifying week starts on a Sunday and ends on a Saturday.
- Continue to work for you from the qualifying week to the date of the child's placement.
- Notified you when they want to take paternity leave no more than seven days after the adopter is notified that they've been matched with a child.
- Will be taking time off to support the adopter and/or to care for the child. They cannot take paternity leave for any other purpose.
However, an employee will not qualify for paternity leave if:
- they have previously taken shared parental leave or pay in respect of the child, or
- they have availed of the right to take paid time off to attend pre-adoption appointments
If you think the employee doesn't qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
The right to paternity leave - overseas adoptions
An employee qualifies for paternity leave when adopting a child from overseas if they:
- are either one of two parents jointly adopting a child or the spouse, civil partner, or partner of someone adopting a child individually
- have - or expect to have - responsibility for the child's upbringing with the other or main adopter
- are not taking statutory adoption leave and pay
- have worked for you continuously for at least 26 weeks by the end of the week that the adopter receives an official notification or by the time they want their paternity leave to begin, whichever is later
- have given you the correct notification - see employee notification of paternity leave - adoptions and surrogacy arrangements
- continue to work for you up until the point the child enters Northern Ireland
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - adoptions.
What is official notification for overseas adoptions?
Official notification is written notification issued by or on behalf of the relevant domestic authority (usually the Department of Health) that the authority either:
- is prepared to issue a certificate to the overseas authority dealing with the adoption of the child
- has issued a certificate and sent it to that authority
In either case, the notification certificate confirms that the other or main adopter:
- is eligible to adopt
- has been assessed and approved as being a suitable adoptive parent
The right to paternity leave - surrogacy arrangements
The intended parents in a surrogacy arrangement may be eligible for adoption leave and pay and paternity leave and pay where they are eligible for and intend to apply for a parental order (or have already obtained such).
If one of the intended parents is eligible for paternity leave and pay, they can take one week or two consecutive weeks of leave and pay. The leave and pay must be taken within the first 56 days of birth (ie before the baby is nine weeks old).
To qualify for paternity leave the intended parent must:
- Be the spouse, civil partner, or partner (including same-sex partner) of the intended parent who has elected to take adoption leave. A partner is someone who lives with the other intended parent in an enduring family relationship but is not an immediate relative.
- Be your employee.
- Have worked for you for 26 weeks by the end of the 15th week before the expected week of birth (known as the qualifying week).
- Be working for you from the qualifying week up to the date of birth.
- Be one of a couple who is eligible for and have applied for, or intend to apply for a Parental Order in respect of the child within six months of the birth.
- Expect to have the main responsibility for the upbringing of the child (with the other intended parent).
- Give the correct notice.
However, an employee will not qualify for paternity leave if they are taking adoption leave and pay or have already taken shared parental leave or pay in respect of the child.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could allow all employees to take paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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Employee notification of paternity leave - births
Employee and employer obligations for statutory paternity leave notification.
To qualify for paternity leave, an employee should notify you no later than the end of the 15th week before the expected week of childbirth (EWC) - or as soon as is reasonably practicable - of:
- the expected week of the baby's birth
- whether they wish to take one week's or two consecutive weeks' leave
- when they want their paternity leave to start - see the start and duration of paternity leave - births and surrogacy births
The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the birth date falls on a Sunday, that date is the first day in the EWC.
The employee does not have to give you any medical evidence of the pregnancy.
Once the notice is received by the employer, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration - see statutory paternity pay.
If you receive this declaration for payment no later than the end of the 15th week before the EWC, the employee has complied with the leave notification requirements anyway.
Notification of the actual birth date
The employee should tell you the actual date of birth - and in writing if you request it. However, the employee does not have to give you any medical evidence of the birth.
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Paternity leave notification for adoptions and surrogacy
Statutory paternity leave for an adoption or surrogacy arrangement notification obligations for employees and employers.
The notification requirements for paternity leave differ for surrogacy births and UK and overseas adoptions.
Paternity leave notification: UK adoptions
To qualify for paternity leave when adopting a child from within the UK, an employee should notify you no more than seven days after the adopter is notified they've been matched with a child:
- That they intend to take paternity leave.
- When they want their paternity leave to start - see the start and duration of paternity leave - adoptions.
- How much paternity leave they expect to take - see the start and duration of paternity leave - adoptions.
- The date the adopter was notified that they had been matched with the child.
- The date on which the child is expected to be placed for adoption. This date is shown on the matching certificate from the adoption agency.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
Once you receive employee notification, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Paternity leave notification: overseas adoptions
Employees intending to take paternity leave when adopting a child from overseas must give you notice in three stages that they intend to take paternity leave.
Employees must give you the information required in writing if you request it. If the employee is also entitled to statutory paternity pay (SPP), they must give you the evidence required at the same time.
First stage
In the first stage, the employee must inform you of:
- The date on which the other or main adopter received official notification. For an explanation of official notification, see the right to paternity leave - adoptions and surrogacy adoptions.
- The date the child is expected to enter Northern Ireland.
Where the employee already has the necessary 26 weeks' qualifying service when the adopter receives official notification, they must give you this information within 28 days of the adopter receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Where the employee receives official notification before they have the necessary qualifying service, they must give you notice within 28 days of completing the 26 weeks' qualifying service. Again, at this point, the employee should know roughly when the child will enter Northern Ireland.
Second stage
In the second stage, the employee must give you at least 28 days notice of the actual date they want their paternity leave (and statutory paternity pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Paternity leave cannot start before the child has entered Northern Ireland.
Employees can change their mind about the date on which they want their paternity leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third stage
For the third stage, which is after the child has entered Northern Ireland, the employee must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry.
If they are also claiming statutory paternity pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Paternity leave notification: surrogacy arrangements
The intended parent that will take paternity leave and/or statutory paternity pay must notify their employer of their entitlement by the 15th week before the expected week of birth. They must provide:
- The expected week of the child's birth.
- When they want their paternity leave to start. See the start and duration of paternity leave - births and surrogacy births.
- Whether one or two consecutive weeks' leave will be taken.
If requested by their employer, the employee must supply a declaration within 14 days of receipt of the request, that:
- He or she is taking paternity leave to care for the child and/or support the other intended parent.
- They satisfy the entitlement conditions for paternity leave.
- They are eligible for and intend to apply for a Parental Order in respect of the child (or have obtained such an order).
- They have not claimed adoption leave and/or statutory paternity pay. (Persons who claim adoption leave and/or pay are disqualified from claiming paternity leave and/or pay and vice versa).
As soon as practicable after the child is born the employee must notify you of the date of birth.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration. If the employee makes this declaration for statutory paternity pay, they have complied with the notification requirements.
If the employee is not eligible for statutory paternity pay but you still want written notification, you can ask the employee to give you a completed self-certificate Statutory Paternity Pay and Leave: becoming a birth parent (form SC3). You should accept this unless you have strong reasons for suspecting that it is false.
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The start and duration of paternity leave - births and surrogacy births
Employees can choose when they want their paternity leave to begin but can change this date if they give enough notice.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
The duration of paternity leave remains the same regardless of the number of children resulting from a single pregnancy.
When can an employee start their paternity leave?
An employee cannot start their paternity leave until the birth of the baby. Otherwise, an employee can choose to start their leave:
- On the actual date of the baby's birth (whether earlier or later than expected).
- On a date - as the employee has notified you - falling a specified number of days after the actual birth date (whether earlier or later than expected).
- On a date - as the employee has notified you - falling after the first day of the expected week of childbirth (EWC). If the baby is born later than this date, they must delay their leave until the date of the actual birth.
Employees must give you the required notice of their paternity leave - see employee notification of paternity leave - births and employee notification of paternity leave - adoptions and surrogacy arrangements.
If an employee specifies the date of birth as the day they wish to start their leave and they are at work on that day, their leave will begin on the next day.
Changing the start date of paternity leave
In circumstances where the employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of birth, at least 28 days before the first day of the EWC
- a particular date, 28 days before that date
- a specified number of days after the birth, at least 28 days before the date falling the same number of days after the first day of the EWC, eg if the employee wants to start their leave 14 days after the birth and the EWC begins on 16 July, they must notify you of the new date on 2 July, ie 28 days before 14 days after 16 July
If they cannot give the notice in time, they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
What's the latest the employee can take leave?
As long as the employee has given the required notice, their paternity leave can start on any day of the week. However, their leave must finish:
- within 56 days of the actual birth date
- if the child is born earlier than expected, between the birth and 56 days from the first day of the EWC
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The start and duration of paternity leave - adoptions
How an employee can choose and change leave dates for statutory paternity leave for adoptions.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
Choosing the start date of paternity leave - UK adoptions
Paternity leave (and pay) can begin any time from the date of the child's placement with the adopter but must be completed within 56 days of this date.
The employee can choose to begin paternity leave on one of the following:
- The date on which the child is placed with the adopter, even if this is earlier or later than the expected date of placement. If the employee is at work on that date, their leave begins on the day after.
- A predetermined date after the expected date of placement.
- A date falling a specified number of days after the expected date of placement.
Changing the start date of paternity leave - UK adoptions
In the circumstances where an employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of placement, at least 28 days before the expected date of placement
- a particular date, 28 days before that date
- a specified number of days after the placement, at least 28 days before the date paternity leave is expected to then commence
If they cannot give the notice in time (eg the adoption agency alters the date of placement at short notice), they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.If you are unable to agree on the dates of paternity leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Choosing the start date of paternity leave - overseas adoptions
An employee adopting a child from overseas may choose to start their paternity leave from:
- the date that the child enters Northern Ireland
- a fixed date which is later than the date the child enters Northern Ireland
They must complete their leave within 56 days of the date the child enters Northern Ireland. They can start their leave on any day of the week.
Paternity leave is not meant to be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Changing the start date of paternity leave - overseas adoptions
If the employee wants to change the start date of their paternity leave, they must give you 28 days notice of the change.
You can ask for this notification in writing.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
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Contractual issues during paternity leave
Almost all existing terms and conditions continue to apply during statutory paternity leave.
An employee's contract of employment continues throughout paternity leave unless either you or the employee expressly ends it, or it expires.
Terms and conditions during paternity leave
During paternity leave an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except for the terms relating to wages or salary (unless their contract provides otherwise).
Examples of contractual terms and conditions that continue during paternity leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Continuous employment and paternity leave
Paternity leave does not break the continuity of employment.
Similarly, paternity leave counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
It also counts towards assessing seniority and personal length-of-service payments, such as pay increments, under the contract of employment.
Accrual of annual leave
An employee continues to accrue statutory - and any contractual - annual leave entitlement throughout paternity leave.
An employee may not take annual leave during paternity leave - but may take it immediately before or after paternity leave.
Contributions to a pension scheme
While your employee is on paternity leave, you should calculate employer contributions to their pension scheme as if they are working normally and receiving normal pay for doing so. This is regardless of whether or not the employee is receiving ordinary statutory and/or enhanced paternity pay.
If the rules require employee contributions to continue during paternity leave, the employee's contributions should be based on the amount of ordinary statutory and/or contractual paternity pay they are receiving.
Employee contributions will therefore stop if the employee is not receiving any paternity pay - but the pension scheme rules may still allow them to make voluntary contributions.
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Returning to work from paternity leave
An employee returning to work at the end of statutory paternity leave is entitled to return to the same job.
An employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent on paternity leave.
They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they are away.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay.
Return to work where parental leave is taken immediately after paternity leave
Employees who qualify for parental leave may take some of this leave immediately after the end of their paternity leave - see parental leave and time off for dependants.
A period of parental leave of four weeks or less has no impact on the employee's right of return.
An employee who takes a period of parental leave of more than four weeks straight after the end of their paternity leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them to do in the circumstances
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned. You should put the offer in writing and retain a copy. The offer should be as detailed as possible.
If you offer the employee a job that does not fulfil the above criteria, the employee may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their paternity-parental leave about any proposed changes to their job in preparation for their return.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to work from home or do part-time hours. Read more on flexible working: the law and best practice.
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Paternity leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take statutory paternity leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take paternity leave.
Detrimental treatment and paternity leave
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take paternity leave
- availed ofpaternity leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you normally would have made available to the employee.
If an employee believes you have treated them detrimentally under these circumstances, they may raise a grievance with you. This may result in an industrial tribunal claim for detrimental treatment if you fail to address it.
Dismissal and paternity leave
You must not:
- dismiss an employee - or select them for redundancy - because they took, or sought to take paternity leave
- prevent an employee from returning to work after their paternity leave
If you dismiss an employee in these circumstances, they may take a complaint of unfair dismissal to an industrial tribunal - regardless of their length of service.
Redundancy during paternity leave
If there is a redundancy situation at the same time as an employee's paternity leave, you must treat them the same as any other employee under the circumstances. This might be consulting them about the redundancy or considering them for any other suitable job vacancies.
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Statutory paternity pay
Who qualifies for SPP, how to recover SPP payments, and offering SPP enhancements.
For information about eligibility criteria for statutory paternity pay (SPP) see statutory paternity pay and leave.
(Note that in Northern Ireland, in exceptional cases, statutory paternity pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of paternity leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply).
Note that the meaning of the term 'employee' for SPP purposes is different from the meaning of paternity leave and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SPP, even though they do not qualify for paternity leave.
Someone legally classed as a worker who is not entitled to statutory paternity pay might still want to take time off after a birth. You should discuss other options with them, for example, paid holiday or special leave paid or unpaid.
SPP rates and recovery
You must pay eligible employees the lower of:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your SPP payments from HM Revenue & Customs - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced paternity pay
If you wish, you can have enhanced paternity pay arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could:
- Pay full pay during the employee's paternity leave. However, you could also change the qualification criteria for this enhancement, eg the employee needs a year's continuous service.
- Pay paternity pay to all employees - regardless of whether or not they meet the statutory qualification criteria.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. Be careful when using discretion to avoid complaints of unfair treatment or discrimination.
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Returning to work from paternity leave
In this guide:
- Paternity leave and pay
- The right to paternity leave - births
- The right to paternity leave - adoptions and surrogacy arrangements
- Employee notification of paternity leave - births
- Paternity leave notification for adoptions and surrogacy
- The start and duration of paternity leave - births and surrogacy births
- The start and duration of paternity leave - adoptions
- Contractual issues during paternity leave
- Returning to work from paternity leave
- Paternity leave and protection against detriment or dismissal
- Statutory paternity pay
The right to paternity leave - births
Who qualifies for statutory paternity leave for births and how employers may offer enhanced leave rights.
An employee qualifies for paternity leave of up to two weeks and pay provided they meet certain conditions:
- the biological father of the child
- the husband or partner of the mother or adopter (this includes same-sex partners)
- the child's adopter
- the intended parent (if you're having a baby through a surrogacy arrangement)
- has, or expects to have, responsibility for the child's upbringing
A partner includes the spouse or civil partner of the pregnant woman and a person, of either sex, in a long-term relationship with her. The right applies whether the child is conceived naturally or through donor insemination.
In addition, they must:
- Have at least 26 weeks' continuous employment with you ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week.
- Be working for you from the qualifying week up to the date of birth. If their contract ends before the birth, they do not qualify for paternity leave - unless they go on to work for an associated employer. If their contract ends after the birth of the baby, they retain their right to paternity leave (and pay if they qualify).
- Have notified you of their intention to take paternity leave - see employee notification of paternity leave - births.
- Be taking the time off to support the mother and/or care for the baby.
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
You should treat the employee as having the necessary length of service if:
- the baby is born earlier than the 14th week before the EWC
- the birth hadn't occurred early, the employee would have been employed continuously by you for the 26 weeks
If you think the employee does not qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - births and surrogacy births.
For information on how eligible employees should notify you that they intend to take paternity leave, see employee notification of paternity leave - births.
Multiple births and paternity leave
Paternity leave remains at two weeks regardless of the number of children resulting from a single pregnancy.
Stillbirths and paternity leave
If an employee's wife or partner gives birth to a stillborn baby, they are still entitled to paternity leave - but only if the birth happens after 24 weeks of pregnancy.
Death of mother
The employee is still entitled to paternity leave if they would have been entitled to it but for the fact that the mother of the baby has died.
Miscarriage and paternity leave
Where a pregnancy ends before 24 weeks and the child does not survive, the father (or mother's spouse, civil partner, or partner) will not be eligible for paternity leave. They may take sick leave, or you could consider allowing them to take annual leave, compassionate leave, or unpaid leave instead.
Death of baby during or after the day of birth
If the baby is born alive but then later dies, the employee is still entitled to paternity leave. Bereaved parents are also entitled to up to 2 weeks of absence within the 56 weeks following the death of a child through parental bereavement leave. This leave can be used immediately before or after paternity leave or at any time within the 56-week period. See Parental Bereavement Leave and Pay.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you may consider allowing all employees to take two weeks of paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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The right to paternity leave - adoptions and surrogacy arrangements
Who qualifies for statutory paternity leave for adoptions and surrogacy and how employers may offer enhanced leave rights.
To qualify for paternity leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions.
The right to paternity leave - UK adoptions
An employee qualifies for paternity leave when adopting a child from the UK if they:
- Are the spouse, civil partner, or partner (including same-sex partner) who are adopting a child jointly, or are the spouse, civil partner, or partner of someone adopting a child individually. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with the correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.
- Have - or expect to have - responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter.
- Are not taking statutory adoption leave and pay.
- Have been continuously employed by you for at least 26 weeks ending with the week in which they are notified of having been matched with the child - the qualifying week. The qualifying week starts on a Sunday and ends on a Saturday.
- Continue to work for you from the qualifying week to the date of the child's placement.
- Notified you when they want to take paternity leave no more than seven days after the adopter is notified that they've been matched with a child.
- Will be taking time off to support the adopter and/or to care for the child. They cannot take paternity leave for any other purpose.
However, an employee will not qualify for paternity leave if:
- they have previously taken shared parental leave or pay in respect of the child, or
- they have availed of the right to take paid time off to attend pre-adoption appointments
If you think the employee doesn't qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
The right to paternity leave - overseas adoptions
An employee qualifies for paternity leave when adopting a child from overseas if they:
- are either one of two parents jointly adopting a child or the spouse, civil partner, or partner of someone adopting a child individually
- have - or expect to have - responsibility for the child's upbringing with the other or main adopter
- are not taking statutory adoption leave and pay
- have worked for you continuously for at least 26 weeks by the end of the week that the adopter receives an official notification or by the time they want their paternity leave to begin, whichever is later
- have given you the correct notification - see employee notification of paternity leave - adoptions and surrogacy arrangements
- continue to work for you up until the point the child enters Northern Ireland
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - adoptions.
What is official notification for overseas adoptions?
Official notification is written notification issued by or on behalf of the relevant domestic authority (usually the Department of Health) that the authority either:
- is prepared to issue a certificate to the overseas authority dealing with the adoption of the child
- has issued a certificate and sent it to that authority
In either case, the notification certificate confirms that the other or main adopter:
- is eligible to adopt
- has been assessed and approved as being a suitable adoptive parent
The right to paternity leave - surrogacy arrangements
The intended parents in a surrogacy arrangement may be eligible for adoption leave and pay and paternity leave and pay where they are eligible for and intend to apply for a parental order (or have already obtained such).
If one of the intended parents is eligible for paternity leave and pay, they can take one week or two consecutive weeks of leave and pay. The leave and pay must be taken within the first 56 days of birth (ie before the baby is nine weeks old).
To qualify for paternity leave the intended parent must:
- Be the spouse, civil partner, or partner (including same-sex partner) of the intended parent who has elected to take adoption leave. A partner is someone who lives with the other intended parent in an enduring family relationship but is not an immediate relative.
- Be your employee.
- Have worked for you for 26 weeks by the end of the 15th week before the expected week of birth (known as the qualifying week).
- Be working for you from the qualifying week up to the date of birth.
- Be one of a couple who is eligible for and have applied for, or intend to apply for a Parental Order in respect of the child within six months of the birth.
- Expect to have the main responsibility for the upbringing of the child (with the other intended parent).
- Give the correct notice.
However, an employee will not qualify for paternity leave if they are taking adoption leave and pay or have already taken shared parental leave or pay in respect of the child.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could allow all employees to take paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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Employee notification of paternity leave - births
Employee and employer obligations for statutory paternity leave notification.
To qualify for paternity leave, an employee should notify you no later than the end of the 15th week before the expected week of childbirth (EWC) - or as soon as is reasonably practicable - of:
- the expected week of the baby's birth
- whether they wish to take one week's or two consecutive weeks' leave
- when they want their paternity leave to start - see the start and duration of paternity leave - births and surrogacy births
The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the birth date falls on a Sunday, that date is the first day in the EWC.
The employee does not have to give you any medical evidence of the pregnancy.
Once the notice is received by the employer, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration - see statutory paternity pay.
If you receive this declaration for payment no later than the end of the 15th week before the EWC, the employee has complied with the leave notification requirements anyway.
Notification of the actual birth date
The employee should tell you the actual date of birth - and in writing if you request it. However, the employee does not have to give you any medical evidence of the birth.
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Paternity leave notification for adoptions and surrogacy
Statutory paternity leave for an adoption or surrogacy arrangement notification obligations for employees and employers.
The notification requirements for paternity leave differ for surrogacy births and UK and overseas adoptions.
Paternity leave notification: UK adoptions
To qualify for paternity leave when adopting a child from within the UK, an employee should notify you no more than seven days after the adopter is notified they've been matched with a child:
- That they intend to take paternity leave.
- When they want their paternity leave to start - see the start and duration of paternity leave - adoptions.
- How much paternity leave they expect to take - see the start and duration of paternity leave - adoptions.
- The date the adopter was notified that they had been matched with the child.
- The date on which the child is expected to be placed for adoption. This date is shown on the matching certificate from the adoption agency.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
Once you receive employee notification, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Paternity leave notification: overseas adoptions
Employees intending to take paternity leave when adopting a child from overseas must give you notice in three stages that they intend to take paternity leave.
Employees must give you the information required in writing if you request it. If the employee is also entitled to statutory paternity pay (SPP), they must give you the evidence required at the same time.
First stage
In the first stage, the employee must inform you of:
- The date on which the other or main adopter received official notification. For an explanation of official notification, see the right to paternity leave - adoptions and surrogacy adoptions.
- The date the child is expected to enter Northern Ireland.
Where the employee already has the necessary 26 weeks' qualifying service when the adopter receives official notification, they must give you this information within 28 days of the adopter receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Where the employee receives official notification before they have the necessary qualifying service, they must give you notice within 28 days of completing the 26 weeks' qualifying service. Again, at this point, the employee should know roughly when the child will enter Northern Ireland.
Second stage
In the second stage, the employee must give you at least 28 days notice of the actual date they want their paternity leave (and statutory paternity pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Paternity leave cannot start before the child has entered Northern Ireland.
Employees can change their mind about the date on which they want their paternity leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third stage
For the third stage, which is after the child has entered Northern Ireland, the employee must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry.
If they are also claiming statutory paternity pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Paternity leave notification: surrogacy arrangements
The intended parent that will take paternity leave and/or statutory paternity pay must notify their employer of their entitlement by the 15th week before the expected week of birth. They must provide:
- The expected week of the child's birth.
- When they want their paternity leave to start. See the start and duration of paternity leave - births and surrogacy births.
- Whether one or two consecutive weeks' leave will be taken.
If requested by their employer, the employee must supply a declaration within 14 days of receipt of the request, that:
- He or she is taking paternity leave to care for the child and/or support the other intended parent.
- They satisfy the entitlement conditions for paternity leave.
- They are eligible for and intend to apply for a Parental Order in respect of the child (or have obtained such an order).
- They have not claimed adoption leave and/or statutory paternity pay. (Persons who claim adoption leave and/or pay are disqualified from claiming paternity leave and/or pay and vice versa).
As soon as practicable after the child is born the employee must notify you of the date of birth.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration. If the employee makes this declaration for statutory paternity pay, they have complied with the notification requirements.
If the employee is not eligible for statutory paternity pay but you still want written notification, you can ask the employee to give you a completed self-certificate Statutory Paternity Pay and Leave: becoming a birth parent (form SC3). You should accept this unless you have strong reasons for suspecting that it is false.
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The start and duration of paternity leave - births and surrogacy births
Employees can choose when they want their paternity leave to begin but can change this date if they give enough notice.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
The duration of paternity leave remains the same regardless of the number of children resulting from a single pregnancy.
When can an employee start their paternity leave?
An employee cannot start their paternity leave until the birth of the baby. Otherwise, an employee can choose to start their leave:
- On the actual date of the baby's birth (whether earlier or later than expected).
- On a date - as the employee has notified you - falling a specified number of days after the actual birth date (whether earlier or later than expected).
- On a date - as the employee has notified you - falling after the first day of the expected week of childbirth (EWC). If the baby is born later than this date, they must delay their leave until the date of the actual birth.
Employees must give you the required notice of their paternity leave - see employee notification of paternity leave - births and employee notification of paternity leave - adoptions and surrogacy arrangements.
If an employee specifies the date of birth as the day they wish to start their leave and they are at work on that day, their leave will begin on the next day.
Changing the start date of paternity leave
In circumstances where the employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of birth, at least 28 days before the first day of the EWC
- a particular date, 28 days before that date
- a specified number of days after the birth, at least 28 days before the date falling the same number of days after the first day of the EWC, eg if the employee wants to start their leave 14 days after the birth and the EWC begins on 16 July, they must notify you of the new date on 2 July, ie 28 days before 14 days after 16 July
If they cannot give the notice in time, they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
What's the latest the employee can take leave?
As long as the employee has given the required notice, their paternity leave can start on any day of the week. However, their leave must finish:
- within 56 days of the actual birth date
- if the child is born earlier than expected, between the birth and 56 days from the first day of the EWC
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The start and duration of paternity leave - adoptions
How an employee can choose and change leave dates for statutory paternity leave for adoptions.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
Choosing the start date of paternity leave - UK adoptions
Paternity leave (and pay) can begin any time from the date of the child's placement with the adopter but must be completed within 56 days of this date.
The employee can choose to begin paternity leave on one of the following:
- The date on which the child is placed with the adopter, even if this is earlier or later than the expected date of placement. If the employee is at work on that date, their leave begins on the day after.
- A predetermined date after the expected date of placement.
- A date falling a specified number of days after the expected date of placement.
Changing the start date of paternity leave - UK adoptions
In the circumstances where an employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of placement, at least 28 days before the expected date of placement
- a particular date, 28 days before that date
- a specified number of days after the placement, at least 28 days before the date paternity leave is expected to then commence
If they cannot give the notice in time (eg the adoption agency alters the date of placement at short notice), they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.If you are unable to agree on the dates of paternity leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Choosing the start date of paternity leave - overseas adoptions
An employee adopting a child from overseas may choose to start their paternity leave from:
- the date that the child enters Northern Ireland
- a fixed date which is later than the date the child enters Northern Ireland
They must complete their leave within 56 days of the date the child enters Northern Ireland. They can start their leave on any day of the week.
Paternity leave is not meant to be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Changing the start date of paternity leave - overseas adoptions
If the employee wants to change the start date of their paternity leave, they must give you 28 days notice of the change.
You can ask for this notification in writing.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
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Contractual issues during paternity leave
Almost all existing terms and conditions continue to apply during statutory paternity leave.
An employee's contract of employment continues throughout paternity leave unless either you or the employee expressly ends it, or it expires.
Terms and conditions during paternity leave
During paternity leave an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except for the terms relating to wages or salary (unless their contract provides otherwise).
Examples of contractual terms and conditions that continue during paternity leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Continuous employment and paternity leave
Paternity leave does not break the continuity of employment.
Similarly, paternity leave counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
It also counts towards assessing seniority and personal length-of-service payments, such as pay increments, under the contract of employment.
Accrual of annual leave
An employee continues to accrue statutory - and any contractual - annual leave entitlement throughout paternity leave.
An employee may not take annual leave during paternity leave - but may take it immediately before or after paternity leave.
Contributions to a pension scheme
While your employee is on paternity leave, you should calculate employer contributions to their pension scheme as if they are working normally and receiving normal pay for doing so. This is regardless of whether or not the employee is receiving ordinary statutory and/or enhanced paternity pay.
If the rules require employee contributions to continue during paternity leave, the employee's contributions should be based on the amount of ordinary statutory and/or contractual paternity pay they are receiving.
Employee contributions will therefore stop if the employee is not receiving any paternity pay - but the pension scheme rules may still allow them to make voluntary contributions.
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Returning to work from paternity leave
An employee returning to work at the end of statutory paternity leave is entitled to return to the same job.
An employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent on paternity leave.
They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they are away.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay.
Return to work where parental leave is taken immediately after paternity leave
Employees who qualify for parental leave may take some of this leave immediately after the end of their paternity leave - see parental leave and time off for dependants.
A period of parental leave of four weeks or less has no impact on the employee's right of return.
An employee who takes a period of parental leave of more than four weeks straight after the end of their paternity leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them to do in the circumstances
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned. You should put the offer in writing and retain a copy. The offer should be as detailed as possible.
If you offer the employee a job that does not fulfil the above criteria, the employee may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their paternity-parental leave about any proposed changes to their job in preparation for their return.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to work from home or do part-time hours. Read more on flexible working: the law and best practice.
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Paternity leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take statutory paternity leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take paternity leave.
Detrimental treatment and paternity leave
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take paternity leave
- availed ofpaternity leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you normally would have made available to the employee.
If an employee believes you have treated them detrimentally under these circumstances, they may raise a grievance with you. This may result in an industrial tribunal claim for detrimental treatment if you fail to address it.
Dismissal and paternity leave
You must not:
- dismiss an employee - or select them for redundancy - because they took, or sought to take paternity leave
- prevent an employee from returning to work after their paternity leave
If you dismiss an employee in these circumstances, they may take a complaint of unfair dismissal to an industrial tribunal - regardless of their length of service.
Redundancy during paternity leave
If there is a redundancy situation at the same time as an employee's paternity leave, you must treat them the same as any other employee under the circumstances. This might be consulting them about the redundancy or considering them for any other suitable job vacancies.
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Statutory paternity pay
Who qualifies for SPP, how to recover SPP payments, and offering SPP enhancements.
For information about eligibility criteria for statutory paternity pay (SPP) see statutory paternity pay and leave.
(Note that in Northern Ireland, in exceptional cases, statutory paternity pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of paternity leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply).
Note that the meaning of the term 'employee' for SPP purposes is different from the meaning of paternity leave and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SPP, even though they do not qualify for paternity leave.
Someone legally classed as a worker who is not entitled to statutory paternity pay might still want to take time off after a birth. You should discuss other options with them, for example, paid holiday or special leave paid or unpaid.
SPP rates and recovery
You must pay eligible employees the lower of:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your SPP payments from HM Revenue & Customs - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced paternity pay
If you wish, you can have enhanced paternity pay arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could:
- Pay full pay during the employee's paternity leave. However, you could also change the qualification criteria for this enhancement, eg the employee needs a year's continuous service.
- Pay paternity pay to all employees - regardless of whether or not they meet the statutory qualification criteria.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. Be careful when using discretion to avoid complaints of unfair treatment or discrimination.
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Contractual issues during paternity leave
In this guide:
- Paternity leave and pay
- The right to paternity leave - births
- The right to paternity leave - adoptions and surrogacy arrangements
- Employee notification of paternity leave - births
- Paternity leave notification for adoptions and surrogacy
- The start and duration of paternity leave - births and surrogacy births
- The start and duration of paternity leave - adoptions
- Contractual issues during paternity leave
- Returning to work from paternity leave
- Paternity leave and protection against detriment or dismissal
- Statutory paternity pay
The right to paternity leave - births
Who qualifies for statutory paternity leave for births and how employers may offer enhanced leave rights.
An employee qualifies for paternity leave of up to two weeks and pay provided they meet certain conditions:
- the biological father of the child
- the husband or partner of the mother or adopter (this includes same-sex partners)
- the child's adopter
- the intended parent (if you're having a baby through a surrogacy arrangement)
- has, or expects to have, responsibility for the child's upbringing
A partner includes the spouse or civil partner of the pregnant woman and a person, of either sex, in a long-term relationship with her. The right applies whether the child is conceived naturally or through donor insemination.
In addition, they must:
- Have at least 26 weeks' continuous employment with you ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week.
- Be working for you from the qualifying week up to the date of birth. If their contract ends before the birth, they do not qualify for paternity leave - unless they go on to work for an associated employer. If their contract ends after the birth of the baby, they retain their right to paternity leave (and pay if they qualify).
- Have notified you of their intention to take paternity leave - see employee notification of paternity leave - births.
- Be taking the time off to support the mother and/or care for the baby.
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
You should treat the employee as having the necessary length of service if:
- the baby is born earlier than the 14th week before the EWC
- the birth hadn't occurred early, the employee would have been employed continuously by you for the 26 weeks
If you think the employee does not qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - births and surrogacy births.
For information on how eligible employees should notify you that they intend to take paternity leave, see employee notification of paternity leave - births.
Multiple births and paternity leave
Paternity leave remains at two weeks regardless of the number of children resulting from a single pregnancy.
Stillbirths and paternity leave
If an employee's wife or partner gives birth to a stillborn baby, they are still entitled to paternity leave - but only if the birth happens after 24 weeks of pregnancy.
Death of mother
The employee is still entitled to paternity leave if they would have been entitled to it but for the fact that the mother of the baby has died.
Miscarriage and paternity leave
Where a pregnancy ends before 24 weeks and the child does not survive, the father (or mother's spouse, civil partner, or partner) will not be eligible for paternity leave. They may take sick leave, or you could consider allowing them to take annual leave, compassionate leave, or unpaid leave instead.
Death of baby during or after the day of birth
If the baby is born alive but then later dies, the employee is still entitled to paternity leave. Bereaved parents are also entitled to up to 2 weeks of absence within the 56 weeks following the death of a child through parental bereavement leave. This leave can be used immediately before or after paternity leave or at any time within the 56-week period. See Parental Bereavement Leave and Pay.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you may consider allowing all employees to take two weeks of paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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The right to paternity leave - adoptions and surrogacy arrangements
Who qualifies for statutory paternity leave for adoptions and surrogacy and how employers may offer enhanced leave rights.
To qualify for paternity leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions.
The right to paternity leave - UK adoptions
An employee qualifies for paternity leave when adopting a child from the UK if they:
- Are the spouse, civil partner, or partner (including same-sex partner) who are adopting a child jointly, or are the spouse, civil partner, or partner of someone adopting a child individually. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with the correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.
- Have - or expect to have - responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter.
- Are not taking statutory adoption leave and pay.
- Have been continuously employed by you for at least 26 weeks ending with the week in which they are notified of having been matched with the child - the qualifying week. The qualifying week starts on a Sunday and ends on a Saturday.
- Continue to work for you from the qualifying week to the date of the child's placement.
- Notified you when they want to take paternity leave no more than seven days after the adopter is notified that they've been matched with a child.
- Will be taking time off to support the adopter and/or to care for the child. They cannot take paternity leave for any other purpose.
However, an employee will not qualify for paternity leave if:
- they have previously taken shared parental leave or pay in respect of the child, or
- they have availed of the right to take paid time off to attend pre-adoption appointments
If you think the employee doesn't qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
The right to paternity leave - overseas adoptions
An employee qualifies for paternity leave when adopting a child from overseas if they:
- are either one of two parents jointly adopting a child or the spouse, civil partner, or partner of someone adopting a child individually
- have - or expect to have - responsibility for the child's upbringing with the other or main adopter
- are not taking statutory adoption leave and pay
- have worked for you continuously for at least 26 weeks by the end of the week that the adopter receives an official notification or by the time they want their paternity leave to begin, whichever is later
- have given you the correct notification - see employee notification of paternity leave - adoptions and surrogacy arrangements
- continue to work for you up until the point the child enters Northern Ireland
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - adoptions.
What is official notification for overseas adoptions?
Official notification is written notification issued by or on behalf of the relevant domestic authority (usually the Department of Health) that the authority either:
- is prepared to issue a certificate to the overseas authority dealing with the adoption of the child
- has issued a certificate and sent it to that authority
In either case, the notification certificate confirms that the other or main adopter:
- is eligible to adopt
- has been assessed and approved as being a suitable adoptive parent
The right to paternity leave - surrogacy arrangements
The intended parents in a surrogacy arrangement may be eligible for adoption leave and pay and paternity leave and pay where they are eligible for and intend to apply for a parental order (or have already obtained such).
If one of the intended parents is eligible for paternity leave and pay, they can take one week or two consecutive weeks of leave and pay. The leave and pay must be taken within the first 56 days of birth (ie before the baby is nine weeks old).
To qualify for paternity leave the intended parent must:
- Be the spouse, civil partner, or partner (including same-sex partner) of the intended parent who has elected to take adoption leave. A partner is someone who lives with the other intended parent in an enduring family relationship but is not an immediate relative.
- Be your employee.
- Have worked for you for 26 weeks by the end of the 15th week before the expected week of birth (known as the qualifying week).
- Be working for you from the qualifying week up to the date of birth.
- Be one of a couple who is eligible for and have applied for, or intend to apply for a Parental Order in respect of the child within six months of the birth.
- Expect to have the main responsibility for the upbringing of the child (with the other intended parent).
- Give the correct notice.
However, an employee will not qualify for paternity leave if they are taking adoption leave and pay or have already taken shared parental leave or pay in respect of the child.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could allow all employees to take paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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Employee notification of paternity leave - births
Employee and employer obligations for statutory paternity leave notification.
To qualify for paternity leave, an employee should notify you no later than the end of the 15th week before the expected week of childbirth (EWC) - or as soon as is reasonably practicable - of:
- the expected week of the baby's birth
- whether they wish to take one week's or two consecutive weeks' leave
- when they want their paternity leave to start - see the start and duration of paternity leave - births and surrogacy births
The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the birth date falls on a Sunday, that date is the first day in the EWC.
The employee does not have to give you any medical evidence of the pregnancy.
Once the notice is received by the employer, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration - see statutory paternity pay.
If you receive this declaration for payment no later than the end of the 15th week before the EWC, the employee has complied with the leave notification requirements anyway.
Notification of the actual birth date
The employee should tell you the actual date of birth - and in writing if you request it. However, the employee does not have to give you any medical evidence of the birth.
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Paternity leave notification for adoptions and surrogacy
Statutory paternity leave for an adoption or surrogacy arrangement notification obligations for employees and employers.
The notification requirements for paternity leave differ for surrogacy births and UK and overseas adoptions.
Paternity leave notification: UK adoptions
To qualify for paternity leave when adopting a child from within the UK, an employee should notify you no more than seven days after the adopter is notified they've been matched with a child:
- That they intend to take paternity leave.
- When they want their paternity leave to start - see the start and duration of paternity leave - adoptions.
- How much paternity leave they expect to take - see the start and duration of paternity leave - adoptions.
- The date the adopter was notified that they had been matched with the child.
- The date on which the child is expected to be placed for adoption. This date is shown on the matching certificate from the adoption agency.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
Once you receive employee notification, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Paternity leave notification: overseas adoptions
Employees intending to take paternity leave when adopting a child from overseas must give you notice in three stages that they intend to take paternity leave.
Employees must give you the information required in writing if you request it. If the employee is also entitled to statutory paternity pay (SPP), they must give you the evidence required at the same time.
First stage
In the first stage, the employee must inform you of:
- The date on which the other or main adopter received official notification. For an explanation of official notification, see the right to paternity leave - adoptions and surrogacy adoptions.
- The date the child is expected to enter Northern Ireland.
Where the employee already has the necessary 26 weeks' qualifying service when the adopter receives official notification, they must give you this information within 28 days of the adopter receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Where the employee receives official notification before they have the necessary qualifying service, they must give you notice within 28 days of completing the 26 weeks' qualifying service. Again, at this point, the employee should know roughly when the child will enter Northern Ireland.
Second stage
In the second stage, the employee must give you at least 28 days notice of the actual date they want their paternity leave (and statutory paternity pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Paternity leave cannot start before the child has entered Northern Ireland.
Employees can change their mind about the date on which they want their paternity leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third stage
For the third stage, which is after the child has entered Northern Ireland, the employee must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry.
If they are also claiming statutory paternity pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Paternity leave notification: surrogacy arrangements
The intended parent that will take paternity leave and/or statutory paternity pay must notify their employer of their entitlement by the 15th week before the expected week of birth. They must provide:
- The expected week of the child's birth.
- When they want their paternity leave to start. See the start and duration of paternity leave - births and surrogacy births.
- Whether one or two consecutive weeks' leave will be taken.
If requested by their employer, the employee must supply a declaration within 14 days of receipt of the request, that:
- He or she is taking paternity leave to care for the child and/or support the other intended parent.
- They satisfy the entitlement conditions for paternity leave.
- They are eligible for and intend to apply for a Parental Order in respect of the child (or have obtained such an order).
- They have not claimed adoption leave and/or statutory paternity pay. (Persons who claim adoption leave and/or pay are disqualified from claiming paternity leave and/or pay and vice versa).
As soon as practicable after the child is born the employee must notify you of the date of birth.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration. If the employee makes this declaration for statutory paternity pay, they have complied with the notification requirements.
If the employee is not eligible for statutory paternity pay but you still want written notification, you can ask the employee to give you a completed self-certificate Statutory Paternity Pay and Leave: becoming a birth parent (form SC3). You should accept this unless you have strong reasons for suspecting that it is false.
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The start and duration of paternity leave - births and surrogacy births
Employees can choose when they want their paternity leave to begin but can change this date if they give enough notice.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
The duration of paternity leave remains the same regardless of the number of children resulting from a single pregnancy.
When can an employee start their paternity leave?
An employee cannot start their paternity leave until the birth of the baby. Otherwise, an employee can choose to start their leave:
- On the actual date of the baby's birth (whether earlier or later than expected).
- On a date - as the employee has notified you - falling a specified number of days after the actual birth date (whether earlier or later than expected).
- On a date - as the employee has notified you - falling after the first day of the expected week of childbirth (EWC). If the baby is born later than this date, they must delay their leave until the date of the actual birth.
Employees must give you the required notice of their paternity leave - see employee notification of paternity leave - births and employee notification of paternity leave - adoptions and surrogacy arrangements.
If an employee specifies the date of birth as the day they wish to start their leave and they are at work on that day, their leave will begin on the next day.
Changing the start date of paternity leave
In circumstances where the employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of birth, at least 28 days before the first day of the EWC
- a particular date, 28 days before that date
- a specified number of days after the birth, at least 28 days before the date falling the same number of days after the first day of the EWC, eg if the employee wants to start their leave 14 days after the birth and the EWC begins on 16 July, they must notify you of the new date on 2 July, ie 28 days before 14 days after 16 July
If they cannot give the notice in time, they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
What's the latest the employee can take leave?
As long as the employee has given the required notice, their paternity leave can start on any day of the week. However, their leave must finish:
- within 56 days of the actual birth date
- if the child is born earlier than expected, between the birth and 56 days from the first day of the EWC
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The start and duration of paternity leave - adoptions
How an employee can choose and change leave dates for statutory paternity leave for adoptions.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
Choosing the start date of paternity leave - UK adoptions
Paternity leave (and pay) can begin any time from the date of the child's placement with the adopter but must be completed within 56 days of this date.
The employee can choose to begin paternity leave on one of the following:
- The date on which the child is placed with the adopter, even if this is earlier or later than the expected date of placement. If the employee is at work on that date, their leave begins on the day after.
- A predetermined date after the expected date of placement.
- A date falling a specified number of days after the expected date of placement.
Changing the start date of paternity leave - UK adoptions
In the circumstances where an employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of placement, at least 28 days before the expected date of placement
- a particular date, 28 days before that date
- a specified number of days after the placement, at least 28 days before the date paternity leave is expected to then commence
If they cannot give the notice in time (eg the adoption agency alters the date of placement at short notice), they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.If you are unable to agree on the dates of paternity leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Choosing the start date of paternity leave - overseas adoptions
An employee adopting a child from overseas may choose to start their paternity leave from:
- the date that the child enters Northern Ireland
- a fixed date which is later than the date the child enters Northern Ireland
They must complete their leave within 56 days of the date the child enters Northern Ireland. They can start their leave on any day of the week.
Paternity leave is not meant to be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Changing the start date of paternity leave - overseas adoptions
If the employee wants to change the start date of their paternity leave, they must give you 28 days notice of the change.
You can ask for this notification in writing.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
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Contractual issues during paternity leave
Almost all existing terms and conditions continue to apply during statutory paternity leave.
An employee's contract of employment continues throughout paternity leave unless either you or the employee expressly ends it, or it expires.
Terms and conditions during paternity leave
During paternity leave an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except for the terms relating to wages or salary (unless their contract provides otherwise).
Examples of contractual terms and conditions that continue during paternity leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Continuous employment and paternity leave
Paternity leave does not break the continuity of employment.
Similarly, paternity leave counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
It also counts towards assessing seniority and personal length-of-service payments, such as pay increments, under the contract of employment.
Accrual of annual leave
An employee continues to accrue statutory - and any contractual - annual leave entitlement throughout paternity leave.
An employee may not take annual leave during paternity leave - but may take it immediately before or after paternity leave.
Contributions to a pension scheme
While your employee is on paternity leave, you should calculate employer contributions to their pension scheme as if they are working normally and receiving normal pay for doing so. This is regardless of whether or not the employee is receiving ordinary statutory and/or enhanced paternity pay.
If the rules require employee contributions to continue during paternity leave, the employee's contributions should be based on the amount of ordinary statutory and/or contractual paternity pay they are receiving.
Employee contributions will therefore stop if the employee is not receiving any paternity pay - but the pension scheme rules may still allow them to make voluntary contributions.
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Returning to work from paternity leave
An employee returning to work at the end of statutory paternity leave is entitled to return to the same job.
An employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent on paternity leave.
They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they are away.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay.
Return to work where parental leave is taken immediately after paternity leave
Employees who qualify for parental leave may take some of this leave immediately after the end of their paternity leave - see parental leave and time off for dependants.
A period of parental leave of four weeks or less has no impact on the employee's right of return.
An employee who takes a period of parental leave of more than four weeks straight after the end of their paternity leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them to do in the circumstances
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned. You should put the offer in writing and retain a copy. The offer should be as detailed as possible.
If you offer the employee a job that does not fulfil the above criteria, the employee may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their paternity-parental leave about any proposed changes to their job in preparation for their return.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to work from home or do part-time hours. Read more on flexible working: the law and best practice.
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Paternity leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take statutory paternity leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take paternity leave.
Detrimental treatment and paternity leave
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take paternity leave
- availed ofpaternity leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you normally would have made available to the employee.
If an employee believes you have treated them detrimentally under these circumstances, they may raise a grievance with you. This may result in an industrial tribunal claim for detrimental treatment if you fail to address it.
Dismissal and paternity leave
You must not:
- dismiss an employee - or select them for redundancy - because they took, or sought to take paternity leave
- prevent an employee from returning to work after their paternity leave
If you dismiss an employee in these circumstances, they may take a complaint of unfair dismissal to an industrial tribunal - regardless of their length of service.
Redundancy during paternity leave
If there is a redundancy situation at the same time as an employee's paternity leave, you must treat them the same as any other employee under the circumstances. This might be consulting them about the redundancy or considering them for any other suitable job vacancies.
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Statutory paternity pay
Who qualifies for SPP, how to recover SPP payments, and offering SPP enhancements.
For information about eligibility criteria for statutory paternity pay (SPP) see statutory paternity pay and leave.
(Note that in Northern Ireland, in exceptional cases, statutory paternity pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of paternity leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply).
Note that the meaning of the term 'employee' for SPP purposes is different from the meaning of paternity leave and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SPP, even though they do not qualify for paternity leave.
Someone legally classed as a worker who is not entitled to statutory paternity pay might still want to take time off after a birth. You should discuss other options with them, for example, paid holiday or special leave paid or unpaid.
SPP rates and recovery
You must pay eligible employees the lower of:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your SPP payments from HM Revenue & Customs - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced paternity pay
If you wish, you can have enhanced paternity pay arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could:
- Pay full pay during the employee's paternity leave. However, you could also change the qualification criteria for this enhancement, eg the employee needs a year's continuous service.
- Pay paternity pay to all employees - regardless of whether or not they meet the statutory qualification criteria.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. Be careful when using discretion to avoid complaints of unfair treatment or discrimination.
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The start and duration of paternity leave - adoptions
In this guide:
- Paternity leave and pay
- The right to paternity leave - births
- The right to paternity leave - adoptions and surrogacy arrangements
- Employee notification of paternity leave - births
- Paternity leave notification for adoptions and surrogacy
- The start and duration of paternity leave - births and surrogacy births
- The start and duration of paternity leave - adoptions
- Contractual issues during paternity leave
- Returning to work from paternity leave
- Paternity leave and protection against detriment or dismissal
- Statutory paternity pay
The right to paternity leave - births
Who qualifies for statutory paternity leave for births and how employers may offer enhanced leave rights.
An employee qualifies for paternity leave of up to two weeks and pay provided they meet certain conditions:
- the biological father of the child
- the husband or partner of the mother or adopter (this includes same-sex partners)
- the child's adopter
- the intended parent (if you're having a baby through a surrogacy arrangement)
- has, or expects to have, responsibility for the child's upbringing
A partner includes the spouse or civil partner of the pregnant woman and a person, of either sex, in a long-term relationship with her. The right applies whether the child is conceived naturally or through donor insemination.
In addition, they must:
- Have at least 26 weeks' continuous employment with you ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week.
- Be working for you from the qualifying week up to the date of birth. If their contract ends before the birth, they do not qualify for paternity leave - unless they go on to work for an associated employer. If their contract ends after the birth of the baby, they retain their right to paternity leave (and pay if they qualify).
- Have notified you of their intention to take paternity leave - see employee notification of paternity leave - births.
- Be taking the time off to support the mother and/or care for the baby.
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
You should treat the employee as having the necessary length of service if:
- the baby is born earlier than the 14th week before the EWC
- the birth hadn't occurred early, the employee would have been employed continuously by you for the 26 weeks
If you think the employee does not qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - births and surrogacy births.
For information on how eligible employees should notify you that they intend to take paternity leave, see employee notification of paternity leave - births.
Multiple births and paternity leave
Paternity leave remains at two weeks regardless of the number of children resulting from a single pregnancy.
Stillbirths and paternity leave
If an employee's wife or partner gives birth to a stillborn baby, they are still entitled to paternity leave - but only if the birth happens after 24 weeks of pregnancy.
Death of mother
The employee is still entitled to paternity leave if they would have been entitled to it but for the fact that the mother of the baby has died.
Miscarriage and paternity leave
Where a pregnancy ends before 24 weeks and the child does not survive, the father (or mother's spouse, civil partner, or partner) will not be eligible for paternity leave. They may take sick leave, or you could consider allowing them to take annual leave, compassionate leave, or unpaid leave instead.
Death of baby during or after the day of birth
If the baby is born alive but then later dies, the employee is still entitled to paternity leave. Bereaved parents are also entitled to up to 2 weeks of absence within the 56 weeks following the death of a child through parental bereavement leave. This leave can be used immediately before or after paternity leave or at any time within the 56-week period. See Parental Bereavement Leave and Pay.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you may consider allowing all employees to take two weeks of paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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The right to paternity leave - adoptions and surrogacy arrangements
Who qualifies for statutory paternity leave for adoptions and surrogacy and how employers may offer enhanced leave rights.
To qualify for paternity leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions.
The right to paternity leave - UK adoptions
An employee qualifies for paternity leave when adopting a child from the UK if they:
- Are the spouse, civil partner, or partner (including same-sex partner) who are adopting a child jointly, or are the spouse, civil partner, or partner of someone adopting a child individually. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with the correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.
- Have - or expect to have - responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter.
- Are not taking statutory adoption leave and pay.
- Have been continuously employed by you for at least 26 weeks ending with the week in which they are notified of having been matched with the child - the qualifying week. The qualifying week starts on a Sunday and ends on a Saturday.
- Continue to work for you from the qualifying week to the date of the child's placement.
- Notified you when they want to take paternity leave no more than seven days after the adopter is notified that they've been matched with a child.
- Will be taking time off to support the adopter and/or to care for the child. They cannot take paternity leave for any other purpose.
However, an employee will not qualify for paternity leave if:
- they have previously taken shared parental leave or pay in respect of the child, or
- they have availed of the right to take paid time off to attend pre-adoption appointments
If you think the employee doesn't qualify for paternity leave and they dispute this, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
The right to paternity leave - overseas adoptions
An employee qualifies for paternity leave when adopting a child from overseas if they:
- are either one of two parents jointly adopting a child or the spouse, civil partner, or partner of someone adopting a child individually
- have - or expect to have - responsibility for the child's upbringing with the other or main adopter
- are not taking statutory adoption leave and pay
- have worked for you continuously for at least 26 weeks by the end of the week that the adopter receives an official notification or by the time they want their paternity leave to begin, whichever is later
- have given you the correct notification - see employee notification of paternity leave - adoptions and surrogacy arrangements
- continue to work for you up until the point the child enters Northern Ireland
However, an employee will not qualify for paternity leave if they have previously taken shared parental leave in respect of the child.
For more information on how much paternity leave eligible employees can take and when their leave can start, see the start and duration of paternity leave - adoptions.
What is official notification for overseas adoptions?
Official notification is written notification issued by or on behalf of the relevant domestic authority (usually the Department of Health) that the authority either:
- is prepared to issue a certificate to the overseas authority dealing with the adoption of the child
- has issued a certificate and sent it to that authority
In either case, the notification certificate confirms that the other or main adopter:
- is eligible to adopt
- has been assessed and approved as being a suitable adoptive parent
The right to paternity leave - surrogacy arrangements
The intended parents in a surrogacy arrangement may be eligible for adoption leave and pay and paternity leave and pay where they are eligible for and intend to apply for a parental order (or have already obtained such).
If one of the intended parents is eligible for paternity leave and pay, they can take one week or two consecutive weeks of leave and pay. The leave and pay must be taken within the first 56 days of birth (ie before the baby is nine weeks old).
To qualify for paternity leave the intended parent must:
- Be the spouse, civil partner, or partner (including same-sex partner) of the intended parent who has elected to take adoption leave. A partner is someone who lives with the other intended parent in an enduring family relationship but is not an immediate relative.
- Be your employee.
- Have worked for you for 26 weeks by the end of the 15th week before the expected week of birth (known as the qualifying week).
- Be working for you from the qualifying week up to the date of birth.
- Be one of a couple who is eligible for and have applied for, or intend to apply for a Parental Order in respect of the child within six months of the birth.
- Expect to have the main responsibility for the upbringing of the child (with the other intended parent).
- Give the correct notice.
However, an employee will not qualify for paternity leave if they are taking adoption leave and pay or have already taken shared parental leave or pay in respect of the child.
Enhanced paternity leave
If you wish, you can have enhanced paternity leave arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could allow all employees to take paternity leave - regardless of their length of service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. If exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay, which was introduced in Northern Ireland in April 2015.
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Employee notification of paternity leave - births
Employee and employer obligations for statutory paternity leave notification.
To qualify for paternity leave, an employee should notify you no later than the end of the 15th week before the expected week of childbirth (EWC) - or as soon as is reasonably practicable - of:
- the expected week of the baby's birth
- whether they wish to take one week's or two consecutive weeks' leave
- when they want their paternity leave to start - see the start and duration of paternity leave - births and surrogacy births
The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the birth date falls on a Sunday, that date is the first day in the EWC.
The employee does not have to give you any medical evidence of the pregnancy.
Once the notice is received by the employer, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration - see statutory paternity pay.
If you receive this declaration for payment no later than the end of the 15th week before the EWC, the employee has complied with the leave notification requirements anyway.
Notification of the actual birth date
The employee should tell you the actual date of birth - and in writing if you request it. However, the employee does not have to give you any medical evidence of the birth.
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Paternity leave notification for adoptions and surrogacy
Statutory paternity leave for an adoption or surrogacy arrangement notification obligations for employees and employers.
The notification requirements for paternity leave differ for surrogacy births and UK and overseas adoptions.
Paternity leave notification: UK adoptions
To qualify for paternity leave when adopting a child from within the UK, an employee should notify you no more than seven days after the adopter is notified they've been matched with a child:
- That they intend to take paternity leave.
- When they want their paternity leave to start - see the start and duration of paternity leave - adoptions.
- How much paternity leave they expect to take - see the start and duration of paternity leave - adoptions.
- The date the adopter was notified that they had been matched with the child.
- The date on which the child is expected to be placed for adoption. This date is shown on the matching certificate from the adoption agency.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
Once you receive employee notification, it is advisable to discuss the date the employee is expected to return to work from paternity leave. However, you are not under any legal obligation to give the employee confirmation of the end date of their paternity leave.
Paternity leave notification: overseas adoptions
Employees intending to take paternity leave when adopting a child from overseas must give you notice in three stages that they intend to take paternity leave.
Employees must give you the information required in writing if you request it. If the employee is also entitled to statutory paternity pay (SPP), they must give you the evidence required at the same time.
First stage
In the first stage, the employee must inform you of:
- The date on which the other or main adopter received official notification. For an explanation of official notification, see the right to paternity leave - adoptions and surrogacy adoptions.
- The date the child is expected to enter Northern Ireland.
Where the employee already has the necessary 26 weeks' qualifying service when the adopter receives official notification, they must give you this information within 28 days of the adopter receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Where the employee receives official notification before they have the necessary qualifying service, they must give you notice within 28 days of completing the 26 weeks' qualifying service. Again, at this point, the employee should know roughly when the child will enter Northern Ireland.
Second stage
In the second stage, the employee must give you at least 28 days notice of the actual date they want their paternity leave (and statutory paternity pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Paternity leave cannot start before the child has entered Northern Ireland.
Employees can change their mind about the date on which they want their paternity leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third stage
For the third stage, which is after the child has entered Northern Ireland, the employee must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry.
If they are also claiming statutory paternity pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Paternity leave notification: surrogacy arrangements
The intended parent that will take paternity leave and/or statutory paternity pay must notify their employer of their entitlement by the 15th week before the expected week of birth. They must provide:
- The expected week of the child's birth.
- When they want their paternity leave to start. See the start and duration of paternity leave - births and surrogacy births.
- Whether one or two consecutive weeks' leave will be taken.
If requested by their employer, the employee must supply a declaration within 14 days of receipt of the request, that:
- He or she is taking paternity leave to care for the child and/or support the other intended parent.
- They satisfy the entitlement conditions for paternity leave.
- They are eligible for and intend to apply for a Parental Order in respect of the child (or have obtained such an order).
- They have not claimed adoption leave and/or statutory paternity pay. (Persons who claim adoption leave and/or pay are disqualified from claiming paternity leave and/or pay and vice versa).
As soon as practicable after the child is born the employee must notify you of the date of birth.
Written notification of paternity leave
You may request notification of paternity leave in writing.
Many employees will find it convenient to claim statutory paternity pay at the same time. However, to do this, they must also make a declaration. If the employee makes this declaration for statutory paternity pay, they have complied with the notification requirements.
If the employee is not eligible for statutory paternity pay but you still want written notification, you can ask the employee to give you a completed self-certificate Statutory Paternity Pay and Leave: becoming a birth parent (form SC3). You should accept this unless you have strong reasons for suspecting that it is false.
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The start and duration of paternity leave - births and surrogacy births
Employees can choose when they want their paternity leave to begin but can change this date if they give enough notice.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
The duration of paternity leave remains the same regardless of the number of children resulting from a single pregnancy.
When can an employee start their paternity leave?
An employee cannot start their paternity leave until the birth of the baby. Otherwise, an employee can choose to start their leave:
- On the actual date of the baby's birth (whether earlier or later than expected).
- On a date - as the employee has notified you - falling a specified number of days after the actual birth date (whether earlier or later than expected).
- On a date - as the employee has notified you - falling after the first day of the expected week of childbirth (EWC). If the baby is born later than this date, they must delay their leave until the date of the actual birth.
Employees must give you the required notice of their paternity leave - see employee notification of paternity leave - births and employee notification of paternity leave - adoptions and surrogacy arrangements.
If an employee specifies the date of birth as the day they wish to start their leave and they are at work on that day, their leave will begin on the next day.
Changing the start date of paternity leave
In circumstances where the employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of birth, at least 28 days before the first day of the EWC
- a particular date, 28 days before that date
- a specified number of days after the birth, at least 28 days before the date falling the same number of days after the first day of the EWC, eg if the employee wants to start their leave 14 days after the birth and the EWC begins on 16 July, they must notify you of the new date on 2 July, ie 28 days before 14 days after 16 July
If they cannot give the notice in time, they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
What's the latest the employee can take leave?
As long as the employee has given the required notice, their paternity leave can start on any day of the week. However, their leave must finish:
- within 56 days of the actual birth date
- if the child is born earlier than expected, between the birth and 56 days from the first day of the EWC
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The start and duration of paternity leave - adoptions
How an employee can choose and change leave dates for statutory paternity leave for adoptions.
Eligible employees can choose to take a single block of either one week or two consecutive weeks' paternity leave. They cannot take it as odd days or as two separate weeks.
Choosing the start date of paternity leave - UK adoptions
Paternity leave (and pay) can begin any time from the date of the child's placement with the adopter but must be completed within 56 days of this date.
The employee can choose to begin paternity leave on one of the following:
- The date on which the child is placed with the adopter, even if this is earlier or later than the expected date of placement. If the employee is at work on that date, their leave begins on the day after.
- A predetermined date after the expected date of placement.
- A date falling a specified number of days after the expected date of placement.
Changing the start date of paternity leave - UK adoptions
In the circumstances where an employee decides to change the start date of their paternity leave, they must give you the following notice where they want to change their leave, so it starts on:
- the date of placement, at least 28 days before the expected date of placement
- a particular date, 28 days before that date
- a specified number of days after the placement, at least 28 days before the date paternity leave is expected to then commence
If they cannot give the notice in time (eg the adoption agency alters the date of placement at short notice), they should tell you as soon as is reasonably practicable.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.If you are unable to agree on the dates of paternity leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Choosing the start date of paternity leave - overseas adoptions
An employee adopting a child from overseas may choose to start their paternity leave from:
- the date that the child enters Northern Ireland
- a fixed date which is later than the date the child enters Northern Ireland
They must complete their leave within 56 days of the date the child enters Northern Ireland. They can start their leave on any day of the week.
Paternity leave is not meant to be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Changing the start date of paternity leave - overseas adoptions
If the employee wants to change the start date of their paternity leave, they must give you 28 days notice of the change.
You can ask for this notification in writing.
Where an employee has changed the start date of their leave, they should fill in a new self-certificate - see statutory paternity pay.
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Contractual issues during paternity leave
Almost all existing terms and conditions continue to apply during statutory paternity leave.
An employee's contract of employment continues throughout paternity leave unless either you or the employee expressly ends it, or it expires.
Terms and conditions during paternity leave
During paternity leave an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except for the terms relating to wages or salary (unless their contract provides otherwise).
Examples of contractual terms and conditions that continue during paternity leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Continuous employment and paternity leave
Paternity leave does not break the continuity of employment.
Similarly, paternity leave counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
It also counts towards assessing seniority and personal length-of-service payments, such as pay increments, under the contract of employment.
Accrual of annual leave
An employee continues to accrue statutory - and any contractual - annual leave entitlement throughout paternity leave.
An employee may not take annual leave during paternity leave - but may take it immediately before or after paternity leave.
Contributions to a pension scheme
While your employee is on paternity leave, you should calculate employer contributions to their pension scheme as if they are working normally and receiving normal pay for doing so. This is regardless of whether or not the employee is receiving ordinary statutory and/or enhanced paternity pay.
If the rules require employee contributions to continue during paternity leave, the employee's contributions should be based on the amount of ordinary statutory and/or contractual paternity pay they are receiving.
Employee contributions will therefore stop if the employee is not receiving any paternity pay - but the pension scheme rules may still allow them to make voluntary contributions.
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Returning to work from paternity leave
An employee returning to work at the end of statutory paternity leave is entitled to return to the same job.
An employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent on paternity leave.
They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they are away.
Shared parental leave and pay
In addition, fathers, spouses, civil partners, or partners may be eligible for shared parental leave and pay.
Return to work where parental leave is taken immediately after paternity leave
Employees who qualify for parental leave may take some of this leave immediately after the end of their paternity leave - see parental leave and time off for dependants.
A period of parental leave of four weeks or less has no impact on the employee's right of return.
An employee who takes a period of parental leave of more than four weeks straight after the end of their paternity leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them to do in the circumstances
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned. You should put the offer in writing and retain a copy. The offer should be as detailed as possible.
If you offer the employee a job that does not fulfil the above criteria, the employee may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their paternity-parental leave about any proposed changes to their job in preparation for their return.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to work from home or do part-time hours. Read more on flexible working: the law and best practice.
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Paternity leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take statutory paternity leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take paternity leave.
Detrimental treatment and paternity leave
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take paternity leave
- availed ofpaternity leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you normally would have made available to the employee.
If an employee believes you have treated them detrimentally under these circumstances, they may raise a grievance with you. This may result in an industrial tribunal claim for detrimental treatment if you fail to address it.
Dismissal and paternity leave
You must not:
- dismiss an employee - or select them for redundancy - because they took, or sought to take paternity leave
- prevent an employee from returning to work after their paternity leave
If you dismiss an employee in these circumstances, they may take a complaint of unfair dismissal to an industrial tribunal - regardless of their length of service.
Redundancy during paternity leave
If there is a redundancy situation at the same time as an employee's paternity leave, you must treat them the same as any other employee under the circumstances. This might be consulting them about the redundancy or considering them for any other suitable job vacancies.
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Statutory paternity pay
Who qualifies for SPP, how to recover SPP payments, and offering SPP enhancements.
For information about eligibility criteria for statutory paternity pay (SPP) see statutory paternity pay and leave.
(Note that in Northern Ireland, in exceptional cases, statutory paternity pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of paternity leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply).
Note that the meaning of the term 'employee' for SPP purposes is different from the meaning of paternity leave and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SPP, even though they do not qualify for paternity leave.
Someone legally classed as a worker who is not entitled to statutory paternity pay might still want to take time off after a birth. You should discuss other options with them, for example, paid holiday or special leave paid or unpaid.
SPP rates and recovery
You must pay eligible employees the lower of:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your SPP payments from HM Revenue & Customs - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced paternity pay
If you wish, you can have enhanced paternity pay arrangements, which are more generous than the statutory entitlements, to attract and retain employees.
For example, you could:
- Pay full pay during the employee's paternity leave. However, you could also change the qualification criteria for this enhancement, eg the employee needs a year's continuous service.
- Pay paternity pay to all employees - regardless of whether or not they meet the statutory qualification criteria.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. Be careful when using discretion to avoid complaints of unfair treatment or discrimination.
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