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Paternity leave and statutory paternity pay

Last updated: 18 Dec 2020

When you take time off because your partner is having a baby, adopting a child, or having a baby through surrogacy, you may be eligible for up to 2 weeks of paternity leave, statutory paternity pay (SPP), and shared parental leave

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This article discusses the law on paternity leave and SPP. 

Who can take paternity leave?

You must be an employee to take paternity leave, not 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).

You do not have to be the father of the baby, but you must be either the father, the mother/adopter’s spouse or civil partner, or you are the mother/adopter’s partner and live with them and the child.

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.
  • have worked continuously for their employer for 26 weeks by the end of the 15th week before the baby is due.
  • still be employed by the employer on the day the child is born.

To work out the 15th week before the baby is due, 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 15th week, known as the “qualifying week”.

As a rough guide, if you have worked for your employer since before the mother got 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 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.

If you are not married or in a civil partnership with the mother, you count as her partner if you live with her in an ‘enduring family relationship’, but you are not a close blood relative. This applies to opposite sex and same sex partners. Relatives of a pregnant woman cannot take paternity leave, for example where their daughter is pregnant; they would have to take some other form of leave instead.

When can I go on paternity leave?

Paternity leave can cover the two weeks soon after the birth or adoption of a child. After that, you may be able to take shared parental leave if you and your partner meet the conditions.

You can choose to take one or two consecutive weeks. You do not have a legal right to take paternity leave in days or in two separate weeks, but if you need to do this, you can always ask your employer if it is possible.

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 which falls at any point after the due date, as long as the leave is completed within 56 days of the birth (but see below for premature babies).

Leave can start on any day of the week but must usually be completed within 56 days of the actual birth. However, if the baby is born early, leave must be completed within the period from the actual date of birth up to 56 days after the expected week of birth. This means that parents of premature babies have a longer period after the birth in which to take paternity leave.

If you are working on the day that the baby is born, and you have said you want your leave to begin from the birth (or from a specified date and baby is not yet born), your leave will start the next day.

You cannot start paternity leave before the birth, if you have given notice for a date 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 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 is being born. If a baby is stillborn after 24 weeks of pregnancy, or is born alive at any time but then dies, you have the right to take paternity leave as usual.

How much will be paid?

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.

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.

If you are not entitled to SPP, you may be able to claim Income Support during Paternity 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.

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.

How much notice do I need to give?

You must give notice for SPP (and leave if you are employed) 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

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.

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.

If you are, you may have a claim for detrimental treatment.  You should seek advice, and explain your concern to your employer (if necessary, by a written grievance) before considering making a claim in the employment tribunal.

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.

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The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.