The Complete Guide to Paternity

Paternity leave is an almost inevitable part of managing your employees. All employees who meet the eligibility requirements are entitled to leave when they are expecting a child or going through the adoption or surrogacy process. This is either paternity, shared parental leave, maternity leave or adoption leave.

In this article, we’ll explore the statutory rights for paternity leave in the UK. We’ll also highlight the process for statutory entitlement and the length of time an employee can take.

If you manage staff or own a business and you’re looking for specific support on paternity pay then contact Croner on 0808 145 3003 and speak to our award-winning team.

Our expert staff can offer everything from a 24-hour advice line to tribunal representation.

What is statutory paternity leave?

Statutory Paternity Leave refers to the period directly after a child's birth that entitles parents to take time off work to support their partner or care for the child.

Paternity leave rights entitle contracted staff members to this type of absence from work. As with other forms of parental leave, paternity leave provides a baby's father or spouse, civil partner, or partner of the child’s mother with some time to spend with their new family.

When your employee takes time off after their partner has had a baby, adopted a child or had a baby through a surrogacy arrangement, they might be eligible for:

• One or two weeks of paid Paternity Leave
• Paternity Pay
• Shared Parental Leave and Pay

If one of your employees has a pregnant partner you should plan ahead before the baby is due. In order to manage your resources correctly, you need to ensure that you manage absence.

How long is statutory paternity leave?

Employees who meet entitlement criteria can choose to take either one week or two consecutive or non-consecutive weeks’ paternity leave. The length of time is the same even if they have more than one child (for example, twins).

Leave can’t start before the child's birth (unlike maternity leave). The start date must be either:

• The actual date of birth.
• An agreed number of days after the baby is born.
• An agreed number of days after the expected week of childbirth.

Leave can now be taken within one year of the child’s birth, or in adoption cases, of the child being placed with the employee. If an employee is adopting, they have the same timeframes. It can start the date on which the child is placed with the adopter, agreed number of days after child’s placement, or from specified predetermined date of expected date of placement. To be taken within one year of the child being placed with the employee.  

An employee can, of course, use annual leave to extend the parental leave period. There is also unpaid parental leave and shared parental leave to consider.

What are the eligibility criteria for paternity leave and pay?

In order to qualify for statutory paternity leave, an employee must meet the following criteria:

• The father (or expectant father) of the child (or children in cases of multiple births).
• The spouse, civil partner, or partner of the child’s mother or main adopter - it includes same sex partners.
• The intended parent (if they’re having a baby through a surrogacy arrangement).

Your employees must also:

• Have a contract of employment and be classed as an employee (for paternity leave only).
• Be employed by your organisation at the point that leave is taken or placed with the parents by the adoption agency
• Earn at least £123 a week (gross) before tax on your payroll.
• Have worked at your company continuously for 26 weeks by the end of the 15th week before the baby’s due date. (The Paternity Leave (Bereavement) Act 2024 has just received Royal Assent but will need further regulations before it is implemented which given the general election may not happen - if it is brought in, it would remove the continuous service requirement for employees to take paternity leave in circumstances where the mother/main adopter has died.)
• Plan on sharing parental responsibility for the care of the baby.
• Give you (the employer) the correct notice.

As a result of these requirements, certain individuals, such as agency workers or self-employed and contract workers, are not eligible for paternity leave.

Eligibility criteria for all parental leave and pay will be outlined in an employment contract.

There are additional rules for employees who are in specific situations that could affect their pay. For example, if an employee gets a backdated pay rise, then employers must:

• Recalculate their employee’s average weekly earnings (AWE).
• Pay the extra-statutory paternity pay if applicable.

If an employee isn’t eligible for statutory paternity pay, employers need to recalculate their AWE, as they may now be entitled to it.

Which employees are entitled to statutory paternity leave?

Your employees may be eligible for Statutory Paternity Leave or Statutory Paternity Pay. To qualify your employees should be:

• father of the child, or spouse, civil partner or partner of the child’s mother, their partner is expecting a baby.
• Having a baby via surrogacy.
• Adopting via an adoption agency. (In the case of adoption employees may qualify for statutory adoption pay and leave. Employees will only be able to take one)

In all instances, the employee may be entitled to certain benefits. It is worth noting that paternity leave is different from maternity leave. Find out more on maternity leave and statutory maternity pay with this Croner calculator.

If the child is born early, the employee is still eligible if they would have worked for you continuously for at least 26 weeks by the qualifying week.

A new Act is making its way through parliament around neonatal pay and leave (due to the General Election we’ll have to wait to see whether it actually comes in, although it’s expected in October 2024 at the earliest . This is to help support the parents of premature babies and babies who require a hospital stay before they are 28 days old.

What is statutory paternity pay?

It’s the minimum amount you can pay your employees by law if they’ve been at your company continuously for more than 26 weeks, ending with the 15th week before the expected week of childbirth.

Employees must take their paternity leave in the period beginning the date the child is born and ending 56 days later. Or from a specified chosen number of days after child’s birth/placement, or from specified predetermined date which is later than the first day of the expected week of the child’s birth or expected date of placement. Take within one year.

For adoptions within the UK, employees must take their paternity leave within 1 year, beginning with the date of placement.

Eligibility depends on if the employee’s average weekly earnings are at least equal to the lower earnings limit for their National Insurance contributions (£123 per week).

What is contractual paternity pay?

Instead of offering your employees the bare minimum, you may choose to offer a rate of pay that is higher than the statutory requirement.

This is ‘contractual’ because the length and amount offered should be set out in your employee’s contract of employment. While it’s up to you to decide how much to pay, it’s worth remembering that it can’t be lower than the statutory rate.

How much is paternity pay

If eligible, an employee’s SPP is either a flat rate of £184.03 (from April 2024 per week, or 90% of their average weekly earnings—whichever is lower.

For example, if the employee’s average weekly earnings amount to £194.03, their SPP will be £184.03, as it’s the lower amount.

As for how to calculate paternity pay, you can either calculate this manually or use the government website.

If you’d like to calculate it by yourself, first step is to calculate the employee’s average weekly earnings, how you do this depends on how the employee is paid e.g. weekly or monthly, and when the ‘relevant period’ is for that employee.

It’s important to remember, however, that if the employee’s average weekly earnings during this period are less than the lower-earnings limit, they won't qualify for SPP.

Payment starts the day after the last day the staff member worked before starting their paternity leave.

Who pays paternity leave?

It’s not uncommon for you to wonder, ‘do employers have to pay paternity leave?’. The answer is always yes. Even if you don't offer contractual paternity pay, employees are still entitled to statutory paternity pay, providing they meet the eligibility requirements.

It’s your responsibility to make these payments, although you can reclaim up to 92% of it from the government. It’s worth noting, if your business qualifies for a Small Employers’ Relief, you can reclaim up to 103% of the original payment.

For the self-employed, paternity pay is out of the question. This is because only staff members with an employment contract can receive SPP. With that in mind, it’s important to have a plan in mind for managing family affairs and upcoming expenses before the baby arrives.

While workers aren’t eligible for paternity leave, they may qualify for paternity pay if they meet the criteria for qualification.

If they do, they should write to their employer at least 28 days before they want payment to begin, stating:

• The worker’s name.
• When the baby is due.
• When they would like payment to begin.
• Whether they want one or two weeks’ pay.

Why wouldn’t an employee be entitled to pay?

Employees might not be entitled to paternity pay if they:

• Have been with the company less than 26 weeks.
• Are self-employed.
• Have taken paid leave to attend adoption appointments.

How do I know if my employee is entitled to Statutory Paternity Pay?

Paternity leave entitlement in the UK allows your staff who are off work for this reason to be paid, as long as they qualify for paternity leave.

Employees on statutory paternity leave may be entitled to receive statutory paternity pay. The standard weekly pay rate for this is currently £184.03, or 90% of their average weekly earnings. Whichever is lower.

If you decide to offer contractual paternity pay, remember the rate of pay cannot be lower than the statutory rate.

It’s essential to set out the length and amount they’re entitled to in their contract of employment.

How do I calculate an employee’s paternity leave and pay?

Check out this useful GOV guide for calculating paternity leave and pay using their maternity and paternity calculator.

Can employees get additional leave or pay for paternity leave?

There are instances where your employees are entitled to additional leave or pay. For example:

• If their partner returns to work and they qualify for shared parental leave and pay.
• Your organisation may run a contractual pay scheme which offers more leave or pay.

Irrespective of whether you run this kind of scheme or not, it is imperative that your paternity leave and pay policies are clear and easily accessible to all staff.

Is there a form for employees to complete for paternity leave?

To claim paternity leave and pay, employees will need to provide you with a completed copy of form SC3 (or your version of it).

For employees adopting, they’ll need to use form SC4 to apply for leave within seven days of matching with a child.

Employees are required to inform you of:

• The estimated due date.
• When they’d like to start their leave.
• Whether they want one or two weeks’ leave.

Remember, the employee must notify of eligibility by the 15th week before the expected week of childbirth. Then notice of leave dates must be given with 28 days’ notice. In adoption cases, notice of entitlement and notice of leave dates must be given within 7 days of being matched with the child.

 Although not necessary, most employers request this in writing. For consistency, consider using the paternity leave letter template. Remember you’ll need to adapt it to your specific requirements.

What happens to an employee’s paternity leave and pay if the baby dies?

In this tragic circumstance, the employee would still qualify for paternity leave and pay if they still meet the normal eligibility criteria and if the baby is:

• Born alive at any point in the pregnancy but later dies.
• Is stillborn from 24 weeks of pregnancy onwards.

What happens to employees’ paternity leave in surrogacy arrangements?

If parents have the intention of having a child through a surrogacy arrangement, they may qualify for Statutory Paternity Leave and Pay.

In order to be eligible, the employee must give you a written statement to confirm that they’ve applied or intend to apply for a parental order. This must take place in the 6 months following the baby’s birth.

Do employees have protected employment rights during paternity leave?

An employee’s employment rights, such as pay, pay rises, pension contributions, holidays and returning to a job, are protected during paternity leave.

Employers are still required to pay Statutory Paternity Pay even if they cease trading if they can, if not they would have to claim it from the government.

Get help from Croner on paternity leave and pay

Paternity leave and pay can be tricky issues to get right. If your staff believe they have received unfair treatment then this could leave your organisation open to tribunal claims.

Clear contracts and documentation are vital, and an employee should be able to claim statutory paternity pay and claim paternity leave with ease.

If you’d like to find out more information on any of the topics mentioned in this article, please contact Croner on 0800 470 2758