Ordinary paternity leave and pay

Ordinary paternity leave and pay is available to an employee who is the partner of either a woman who has given birth or someone who is adopting a child.

However, to qualify for both leave and pay, the employee must first meet certain qualification criteria.

This guide will help you deal with the administration of ordinary paternity leave and pay. It will also help you understand the contractual issues surrounding employees on ordinary paternity leave and what rights they have on their return to work.

It also suggests how you could offer enhanced paternity leave and pay arrangements to attract and retain employees.

---

---

The right to ordinary paternity leave – births

An employee qualifies for ordinary paternity leave (OPL) on the birth of a baby if they:

• Have – or expect to have – responsibility for the baby’s upbringing.
• Are the biological father of the baby and/or the mother’s husband or partner (including same-sex partner or civil partner). A partner is someone who lives with the mother of the baby in an enduring family relationship but is not an immediate relative.

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 OPL – unless they go on to work for an associated employer. If their contract ends after the birth, they retain their right to OPL (and pay if they qualify). 
• Have notified you of their intention to take OPL – see the page in this guide on employee notification of ordinary paternity leave – births.
• Be taking the time off to support the mother and/or care for the baby.

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 doesn’t qualify for OPL but they dispute this, contact the Acas Helpline on Tel 08457 47 47 47.

For more information on how much OPL eligible employees can take and when their leave can start, see the page in this guide on the start and duration of ordinary paternity leave – births.

For information on how eligible employees should notify you that they intend to take OPL, see the page in this guide on employee notification of ordinary paternity leave – births.

Multiple births

OPL remains at two weeks regardless of the number of children resulting from a single pregnancy.

Stillbirths

If an employee’s wife or partner gives birth to a stillborn baby, they are still entitled to OPL – but only if the birth happens after 24 weeks of pregnancy.

If the stillbirth occurs before the end of the 24th week of pregnancy, you could allow the employee to take sick or compassionate 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 OPL.

Enhanced paternity leave

If you wish, you can have enhanced paternity leave arrangements to attract and retain employees.

For example, you could allow all employees to take two weeks’ 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.

---

The right to ordinary paternity leave – adoptions

To qualify for ordinary paternity leave (OPL), an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions.

The right to OPL – UK adoptions

An employee qualifies for OPL when adopting a child from the UK if they:

• Are either one of two parents jointly adopting a child or the partner of someone adopting a child individually.
• 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 OPL 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 OPL for any other purpose.

If you think the employee doesn’t qualify for OPL but they dispute this, contact the Acas Helpline on Tel 08457 47 47 47.

The right to OPL – overseas adoptions

An employee qualifies for OPL when adopting a child from overseas if they:

• are either one of two parents jointly adopting a child or the 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 into the week that the adopter receives official notification or by the time they want their OPL to begin, whichever is later
• have given you the correct notification – see the page in this guide on employee notification of ordinary paternity leave – adoptions 
• continue to work for you up until the point the child enters >Great Britain 

For more information on how much OPL eligible employees can take and when their leave can start, see the page in this guide on the start and duration of ordinary 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 for Education) 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 approved as being a suitable adoptive parent

Enhanced paternity leave

If you wish, you can have enhanced paternity leave arrangements to attract and retain employees.

For example, you could allow all employees to take ordinary 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.

---

Employee notification of ordinary paternity leave – births

To qualify for ordinary paternity leave (OPL), 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 date of the baby’s birth
• whether they wish to take one week’s or two weeks’ leave
• when they want their OPL to start – see the page in this guide on the start and duration of ordinary paternity leave – 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.

You do not have to give the employee confirmation of the end date of their OPL.

Written notification

You may request this notification in writing.

Many employees will find it convenient to claim Ordinary Statutory Paternity Pay at the same time. However, to do this, they must also make a declaration – see the page in this guide on Ordinary Statutory Paternity Pay.

If you receive this declaration for pay 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.

---

Employee notification of ordinary paternity leave – adoptions

The notification requirements for ordinary paternity leave (OPL) differ for UK and overseas adoptions.

Notification of OPL – UK adoptions

To qualify for OPL 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 OPL.
• When they want their leave to start – see the page in this guide on the start and duration of ordinary paternity leave – adoptions.
• How much leave they expect to take – see the page in this guide on the start and duration of ordinary 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.

You do not have to give the employee confirmation of the end date of their OPL.

Notification of OPL – overseas adoptions

Employees adopting a child from overseas must give you notice in three stages that they intend to take OPL.

Employees must give you the information required in writing if you request it.

If the employee is also entitled to Ordinary Statutory Paternity Pay (OSPP), they must give you the evidence required at the same time – see our guide on Ordinary Statutory Paternity Pay: eligibility, forms and records.

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 page in this guide on the right to ordinary paternity leave – adoptions.
• The date the child is expected to enter the UK.

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 the UK. 

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 the UK.

In the second stage, the employee must give you at least 28 days’ notice of the actual date they want their OPL (and OSPP if they qualify) to start. They can give this notice at the first notification stage if they know the date. OPL cannot start before the child has entered the UK.

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.

For the third stage, which is after the child has entered the UK, the employee must tell you the date the child entered the UK. They must tell you this within 28 days of the child’s date of entry.

If they are also claiming OSPP, they will need to give evidence of the date of entry – see our guide on Ordinary Statutory Paternity Pay: eligibility, forms and records.

Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering the UK. 

Written notification

You may request notification of OPL in writing.

Many employees will find it convenient to claim OSPP at the same time. However, to do this, they must also make a declaration – see our guide on Ordinary Statutory Paternity Pay: eligibility, forms and records. If the employee makes this declaration for OSPP, they have complied with the notification requirements.

If the employee is not eligible for OSPP but you still want written notification, you can ask the employee to give you a completed self certificate. You should accept this unless you have strong reasons for suspecting that it is false.

---

The start and duration of ordinary paternity leave – births

Eligible employees can choose to take a single block of either one week’s or two weeks’ ordinary paternity leave (OPL). They cannot take it as odd days or as two separate weeks.

The duration of OPL remains the same regardless of the number of children resulting from a single pregnancy.

When can an employee start their OPL?

An employee cannot start their OPL 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 to 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 to 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 OPL – see the page in this guide on employee notification of ordinary paternity leave – births.

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 OPL

If the employee wants to change the start date of their paternity leave, they must give you the following notice:

• if 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
• if they want to change their leave so it starts on a particular date, 28 days before that date
• if they want to change their leave so it starts 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 can’t 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 the page in this guide on Ordinary Statutory Paternity Pay.

What’s the latest the employee can take leave?

As long as the employee has given the required notice, their OPL 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

---

The start and duration of ordinary paternity leave – adoptions

Eligible employees can choose to take a single block of either one week’s or two weeks’ ordinary paternity leave (OPL). They cannot take it as odd days or as two separate weeks.

Choosing the start date of OPL – UK adoptions

Ordinary 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 OPL 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.

If the date of placement changes, the employee’s chosen:

• start date of OPL could fall before the date of placement or even after the 56-day limit
• end date of OPL could fall after the 56-day limit

In these circumstances, the employee should:

• discuss the situation with you as soon as possible
• give the appropriate notice to change the start date

If you are unable to agree about the dates of OPL, contact the Acas Helpline on Tel 08457 47 47 47.

Choosing the start date of OPL – overseas adoptions

An employee adopting a child from overseas may choose to start their OPL:

• from the date the child enters the UK
• from a fixed date which is later than the date the child enters the UK

They must complete their leave within 56 days of the date the child enters the UK. They can start their leave on any day of the week.

OPL 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 OPL

If the employee wants to change the start date of their OPL, they must give you 28 days’ notice of the change.

If they can’t give the notice in time, they should tell you as soon as is reasonably practicable.

You can ask for this notification in writing.

---

Contractual issues during ordinary paternity leave

An employee’s contract of employment continues throughout ordinary paternity leave (OPL) unless either you or the employee expressly ends it or it expires.

Terms and conditions during OPL

During OPL 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.

Examples of contractual terms and conditions that continue during OPL 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 OPL

OPL doesn’t break continuity of employment.

Similarly, OPL 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 OPL.

An employee may not take annual leave during OPL – but may take it immediately before or after OPL.

Contributions to an occupational pension scheme (OPS)

While your employee is on OPL, you should calculate employer contributions to an OPS 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 OPS rules require employee contributions to continue during OPL, 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 OPS rules may still allow them to make voluntary contributions.

---

Returning to work from ordinary paternity leave

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 ordinary paternity leave (OPL).

They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they were away.

Return to work where parental leave is taken immediately after OPL

Employees who qualify for parental leave may take some of this leave immediately after the end of their OPL – see our guide on 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 OPL 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.

If you offer the employee a job that doesn’t fulfil the above criteria, the employee may:

• resign and claim constructive dismissal
• raise a grievance with you, which may result in an employment 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

An employee returning to work may make a request to work flexibly, eg to work from home or do part-time hours. Read our guide on flexible working – the law and best practice.

---

Ordinary paternity leave and protection against detriment or dismissal

Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, ordinary paternity leave (OPL).

Detrimental treatment and OPL

You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:

• took OPL
• sought to take OPL

Examples of detrimental treatment include denial of promotion, facilities or training opportunities which 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 employment tribunal claim for detrimental treatment if you fail to address it.

Dismissal and OPL

You must not:

• dismiss an employee – or select them for redundancy – because they took, or sought to take, OPL
• prevent an employee returning to work after their OPL

If you dismiss an employee in these circumstances, they may take a complaint of unfair dismissal to an employment tribunal – regardless of their length of service.

Redundancy during OPL

If there is a redundancy situation at the same time as an employee’s OPL, 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.

See our guide on redundancy: the options.

---

Ordinary Statutory Paternity Pay

For information about eligibility criteria for Ordinary Statutory Paternity Pay (OSPP) see our guide on Ordinary Statutory Paternity Pay: eligibility, forms and records.

Note that the meaning of the term ’employee’ for OSPP purposes is different to the meaning for ordinary paternity leave (OPL) and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for OSPP, even though they don’t qualify for OPL.

OSPP rates and recovery

You must pay eligible employees the lower of:

• the standard weekly rate – £135.45 from 1 April 2012
• 90 per cent of their average weekly earnings

You can recover some or all of your OSPP payments from HM Revenue & Customs (HMRC) – the proportion you can recover depends on the size of your annual NICs liability.

For more information, see our guide on calculating and recovering Ordinary Statutory Paternity Pay.

Enhanced paternity pay

If you wish, you can have enhanced paternity pay arrangements 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.

---

CASE STUDY

Here’s how I manage ordinary paternity leave and pay in my business

Feather Brooksbank is an award-winning media planning and buying agency with offices in Edinburgh and Manchester. With around 100 employees, the company’s family-friendly culture and policies have contributed to its low staff turnover and its recent inclusion in the Sunday Times 100 Best Small Companies to Work For rankings. Around a third of the company’s 100 employees are men, so a comprehensive paternity policy is an important part of the mix. Here, Human Resources Director Carol Irvine explains the thinking behind the policy and how it works in practice.

What I did

Formulate a policy

“People are our most valuable asset and we believe in treating them well. We decided to offer an enhanced paternity leave and pay package to provide a balance to our enhanced maternity leave provision and to reflect our company culture, which places a strong emphasis on work-life balance.

“We offer two weeks’ leave on full pay and a third on half pay, to be taken within eight weeks of the birth. Employees can also elect to have any unpaid parental leave deductions spread over a 12-month period to make the cost easier to manage. Our policy provides more than the statutory minimum, but we believe the additional cost to the business is well worth it. We consider it an investment in our people that helps towards motivating and retaining staff.

“Staff feedback certainly indicates that male employees and their families really value our policy, particularly as we are based in big cities, so many of our employees don’t have relatives close by to help out in those first few weeks with a newborn.”

Communicate with staff

“As with all employment policies, it’s important that staff are aware of what’s on offer and of their responsibilities. We include the paternity policy in our staff handbook and mention it during inductions. I also send the details to expectant fathers at the point when they notify us of the pregnancy.

“We do expect employees to follow the proper notification requirements, as laid out in the staff handbook, so that we can plan around the absence and put paternity pay arrangements in place. However, we’ve found that being flexible and communicating freely is the key – we try to accommodate employees’ needs wherever possible and they repay us by doing their utmost to take the business’ needs into account when planning their leave.”

Manage the leave

“We manage paternity leave in exactly the same way that we manage annual leave, with regard to forward planning and arranging appropriate cover during the employee’s absence.

“Most of our new fathers take two or three weeks – if you think about it, that’s only around the length of a summer vacation, so it’s not a big issue for the business when planned properly. If they want to, new fathers can even add a period of parental leave or annual leave to the end of their paternity leave, although in practice they tend not to, preferring to save it for later in the year.

“Again, flexibility is important – you have to expect the occasional last-minute change of plan where a new baby is concerned.”

---