When you take time off because your partner is having a baby, or you are adopting a child or having a baby through surrogacy, you may be eligible for one or two weeks of paternity leave and to receive Statutory Paternity Pay (SPP).
A quick and easy way to know if you are eligible for leave and pay is to use the Government calculator.
To take paternity leave, you must be either the biological father of the child, or be the partner, spouse or civil partner of the birth mother.
You do not have to be male or the father of the baby to take paternity leave. A non-birth parent may be eligible for paternity leave if they are the spouse, civil partner or partner of the child’s birth mother or adopter, and shares, or expects to share, the main responsibility for bringing up the child.
In surrogacy cases, at least one of the parental order parents must be the child’s biological parent, and the other parent must be their partner, spouse or civil partner.
Who is a partner?
A partner is a person (whether of a different sex or the same sex) who lives with the mother or primary adopter (and the child) in an enduring family relationship with the birth mother or primary adopter.
If the partner is not the biological father, they must have or expect to have the main responsibility for the upbringing of the child (along with that of the child’s birth mother or primary adopter).
A partner cannot include a parent, grandparent, sister, brother, aunt or uncle of the birth mother or primary adopter.
Eligibility for paternity leave
You must be an employee to take paternity leave. You cannot be self employed or a worker (such as an agency worker). However, some workers can get Statutory Paternity Pay (SPP), if they are “employed earners” (where someone, for example an agency, pays employer’s national insurance).
In order to be eligible for paternity leave, you must:
- have or expect to have responsibility for the child’s upbringing.
- be the biological father of the child or the mother’s husband, civil partner or partner (see above).
- have worked continuously for your employer for 26 weeks by the end of the 15th week before the expected week of childbirth (‘the qualifying week’).
- still be employed by your employer on the day the child is born.
To work out the qualifying week, take the Sunday before the due date (unless your baby is due on a Sunday, in which case use the due date) and count back 15 weeks. This is the start of the qualifying week, which starts on a Sunday and ends on a Saturday.
As a rough guide, if you have worked for your employer since before the birth mother became pregnant, you will meet the continuous employment test. However, it is useful to know the qualifying week as it affects lots of other rights, including when you give notice.
Paternity leave can be taken by more than one person for the same baby, as the biological father, the birth mother’s spouse/civil partner and the mother’s cohabiting partner could all be eligible.
For the child’s father to be eligible he must expect to have responsibility for the upbringing of the child, but for other partners they must expect to have the “main responsibility” (apart from the mother) for the child’s upbringing. If your employer requests it, you may need to make a declaration that you are eligible.
You can choose to take either one or two consecutive weeks of paternity leave. Leave cannot start before the birth, and it must end within 56 days of the birth (or 56 weeks of the due date if the baby is early).
Leave can be taken:
- From the date of the baby’s birth, whenever that takes place.
- From a chosen number of weeks after the date of the baby’s birth (whenever it is born).
- Or from a chosen date that falls at any point after the due date, as long as the leave is completed within 56 days of the birth.
You cannot start paternity leave before the birth. If you have given notice and baby is not yet born, you must continue to work and leave will start the day after the baby is born. If you require time off before or during the birth, then you must use some other form of leave like annual leave or time off for dependants.
There is only one period of leave available even if more than one child (e.g., twins) is born. If a baby is stillborn after 24 weeks of pregnancy, or is born alive at any time but then dies, you still have the right to take paternity leave.
Most employees who are entitled to paternity leave will also be entitled to statutory paternity pay (SPP). SPP is paid by the employer (who can then reclaim payment from the government).
SPP is paid at a flat rate per week or 90% of average weekly earnings, if this is less. If you are paid weekly, average weekly earnings are based on your earnings in the eight weeks ending with the 15th week before the baby is due. If you are paid monthly, it is usually based on the last two pay dates before the end of the 15th week.
However, if your average weekly earnings in this period are less than the lower earnings limit for National Insurance, you will not qualify for SPP.
Some workers who are not entitled to paternity leave can still be entitled to SPP if they are an “employed earner” and meet the conditions of entitlement to leave other than being an employee. So if you are an agency worker and you have earned on average at least the lower earnings limit for National Insurance in the eight weeks ending with and including the 15th week before the baby is due, you would qualify for SPP
If your employer decides you are not entitled to SPP, they should give you a written decision within 28 days of your notice (see below). If they do not give you a decision, or you think the decision is wrong, you can ask HMRC to make a decision for you. For more information, see our article on what to do if my employer does not give me statutory pay?
If you are not entitled to SPP, you may be able to claim Universal Credit (depending on your household income and circumstances) to cover your period of unpaid leave.
Your employer may offer better paternity leave and pay than the legal minimum described here, so you should always check your contract and employer policies. An employer may not offer less than the legal minimum.
You must give notice for paternity leave and SPP by the end of the 15th week before the baby is due. If you have not given notice on time, give it as soon as possible. Your employer may ask to you to use form SC3, which is provided by the HMRC, or to use the employer’s own version of the form.
Your notice does not have to be on a form, as long as you give all the information required.
For leave you must state:
- When the baby is expected to be born (or the date of birth if the baby has already been born),
- Whether you want to take one or two weeks leave AND
- When you want your leave to start.
For pay you must also state:
- Whether you want to receive one or two weeks’ SPP and when you want your pay to start.
- That you are the baby’s father/mother’s partner and will be responsible for the baby’s upbringing, and that you will care for the child or support the child’s mother whilst getting SPP.
If you are applying for your leave and pay after a baby is born (for example, because the child arrives early, or you did not realise you had to give advance notice), remember that you must also state the actual date of birth. If you have given notice to your employer to take leave from the child’s birth, or from a set number of days after this, then you should let them know when the birth happens.
You can change your mind, but you need to give your employer’s at least 28 days’ notice.
Frequently asked questions
Here are answers to some of the most common questions we receive on our free helpline.
I am not entitled to paternity leave or pay, can I still take time off?
If you are an employee, but are not entitled to paternity leave, you may be able to take a short amount of unpaid time off for dependants when the baby is born. If you cannot take paternity leave or time off for dependants, or you need more paid time off, you could ask your employer for annual leave.
Unpaid parental leave can also be taken by eligible employees when a child is born.
You may also be able to take shared parental leave, subject to eligibility (which is similar to eligibility for paternity leave, so please check).
My partner is pregnant and I have been offered a new job. Can I still take paternity leave?
Similar to shared parental leave, if you want to take paternity leave and receive statutory paternity pay (SPP), you must have worked for the same employer for 26 weeks by the end of the 15th week before the baby is due.
This means that you are unlikely to be entitled to take paternity leave if you change jobs after your partner becomes pregnant. However, you can negotiate a period of paid paternity leave with your new employer.
I didn’t give notice by the qualifying week, can I still take paternity leave?
Generally, you must this notice to your employer of your intention to take paternity leave no later than the 15th week prior to the expected week of childbirth.
However, if it is not reasonably practicable for you to comply with this requirement, notice must be provided to your employer as soon as it is reasonably practicable for you to do so. For instance, it might not be reasonably practicable for you to comply with this requirement if you didn’t know of the pregnancy, the due date or if you were not aware that you are entitled to paternity leave and pay.
If you were not able to notify your employer of your intention to take paternity leave and pay by the 15th week before the expected week of childbirth and you have a reason that means it was not reasonable practicable for you to do so, you should let your employer know. You can tell them that it was not reasonably practicable for you to give them notice by the 15th week before the expected week of childbirth, but that you have given them notice as soon as was reasonably practicable for you to do so. They should accept your notice and give you the leave and pay (if you are otherwise eligible).
What can I do if my employer refuses to give me paternity leave or punishes me because I took it?
If you are entitled to paternity leave and SPP, your employer should not refuse to give you leave or SPP. You should also not be treated badly or victimised for taking paternity leave. You have several options if after discussing the matter, your employer refuses to allow you to take Paternity Leave and SPP.
HMRC Statutory Disputes Team
Your employer should issue you with a form SPP1 stating why it cannot pay you SPP. If you are unable to resolve a disagreement with your employer regarding SPP, you can challenge your employer’s decision with HMRC’s Statutory Payments Disputes Team. For more information, see our article on what to do if my employer does not give me statutory pay?
The next step would be to bring a formal written grievance, if you cannot resolve things informally.
If you are not happy with the result of your grievance, and your employer still won’t grant you the leave and pay, the next step would be to make a claim to the Employment Tribunal. But please note that strict time limits apply and therefore you would need to act quickly. For more information:
We recommend resolving things with your employer first before you take this step, as starting formal processes can lead to a breakdown in the employment relationship. We also recommend you seek advice before starting a claim, as the process can be complex.
Can I go on paternity leave if my partner had a miscarriage or the baby dies?
Under the law, if your baby dies before the end of the 24th week of pregnancy, it is called a miscarriage. If your baby dies after the beginning of the 24th week of pregnancy it is called a stillbirth. You will get a certificate of stillbirth.
In the same way as maternity leave, in the case of miscarriage, you will not be entitled to paternity leave or pay. If you have a stillbirth, or if your baby is born alive but later dies, even after a few seconds (and even if this takes place before the 24th week of pregnancy), you are entitled to all your paternity rights.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.