Paternity leave and Statutory Paternity Pay – employer obligations

Paternity leave is still a relatively new concept for bosses, having been first introduced to the UK in 2003. In no time at all, it’s become one of the most sensitive and complex issues for HR & Payroll teams to understand and support. While the laws around paternity leave aren’t as developed as those for maternity pay, it is still a sensitive area of employment law that companies should research thoroughly.

Fathers who are eligible for Statutory Paternity Leave (SPL) can get either one whole week or two continuous weeks of leave to look after their newborn. This is accompanied by Statutory Paternity Pay (SPP) to cover any loss of income during time off. Thanks to new laws introduced on 6 April, this leave can now be taken at any time in the first year of the child’s life.

You might be surprised by the brevity of this allowance, which seems insufficient for dads seeking time to bond with their newborns. Businesses are able to offer enhanced pay, of course, which we’ll cover in this article. Plus, lots of UK parents are exploring alternative care options, like Shared Parental Leave, to balance out child-rearing responsibilities.

We explain every course of action that new fathers might take, including how each policy works and what the rules are for small businesses, in the guide below.

What is Statutory Paternity Leave and how does it work?

Statutory Paternity Leave is a legal entitlement in the UK that allows employees to take up to two weeks of paid time off work. Employers must legally offer it to eligible new parents.

SPL is a hugely important employment policy, as it protects an individual’s right to have a family. It is also an increasingly popular employee benefit as work-life balance continues its upwards trend among workers.

To be considered for paternity leave and pay, the employee must be planning to use the time off to care for the child. This means they can be any one of the following:

• The father
• The husband/partner of the mother (or legal guardian), including same-sex partners
• The child’s legal guardian
• The intended parent (if you’re having a baby through a surrogacy arrangement)

Statutory Paternity Leave entitlement

SPL can be taken as either one week, OR two consecutive weeks. This is the same even if they’re having more than one child, for example twins. Neither amount is legally required and the employee can choose how long they would like to take off. The employer needs to support their right to this parental leave.

Previously, the employee had to use all of their allotted leave in one go. Under new laws introduced on April 6, it no longer needs to be taken in a single block of one or two weeks and can instead be taken at any time during the child’s first year of life.

Under the conditions of SPL, a ‘week’ refers to the employee’s specific work pattern. For example, a week off for SPL might only cover two days if the individual would normally only come in on Mondays and Tuesdays.

Statutory Paternity Leave: rules on eligibility

There are three main criteria for a person to qualify specifically for paternity leave. They should have:

1. Status as an employee

The father-to-be must be legally classed as an employee to take paternity leave. Generally speaking, this means the person should have an employment contract. Agency workers or freelancers might not be eligible for SPL.

2. Been in employment for at least 26 weeks

The applicant must have been employed at the company for at least 26 weeks up to any day in the ‘qualifying week’.

3. Submitted a claim within the correct notice period

Expectant fathers must submit a claim for SPL at least 15 weeks before the baby is due (also known as the “qualifying week”). They should do this using an online application form on the government website, and then sending the completed form to you via post or email.

The application must specify:

• The expected due date
• The amount of time they would like to take off work (one or two weeks)

Workers should also identify the leave start date. Note that the employee doesn’t have to name a precise day. Instead, they can give a general time, such as the first Monday after the birth. Whichever start date they give, they will be off work the following day.

Should employers ask for proof of pregnancy?

Employees do not have to provide medical evidence of a pregnancy or birth to claim SPL. However, the business should ask for a declaration of family commitment, signed by the employee. Download the government’s template form online, or make your own version.

For adoption, the employee must show a letter from the adoption agency or the matching certificate. They should provide this information within 28 days.

For surrogacy, the employee must show a written statement to confirm they will be applying for a parental order in the six months after the child’s birth.

What if the employee does not qualify?

Employers must inform the applicant within 28 days if they do not qualify for paternity leave. They must also explain their reasoning for the decision using the government’s SPP1 form (for example, if the application was submitted too late).

Statutory Paternity Leave: start and end dates

Unlike the rules on maternity leave, SPL cannot start while the woman is still pregnant. This means the earliest a dad can go on paternity leave is the date the child is born. All leave entitlement must also be used up within one year after this date.

If the labour ends up taking multiple days, the father can use their holiday entitlement, or the emergency, unpaid ‘Time off for Dependents’, to be present during this time.

While these things can understandably be hard to plan for, an employer should be given 28 days’ notice if an employee decides they want to change their start date. In practice, if the baby comes early, the father must inform their manager as soon as is reasonably possible.

Adoption

The rules are slightly different if the employee is adopting a child, as the employee will likely not be present for the birth of the child.

Leave must still be taken within eight weeks of the date of placement, or of the child’s arrival in the UK if being adopted from overseas. However, employees have different options over when they can start their SPL:

• On the date of placement, or an agreed number of days after the date of placement
• On the date the child arrives in the UK, or an agreed number of days after this (if adopting from overseas)

Surrogacy

If you use a surrogate, you and your partner are still eligible for paternity pay and leave. One partner can apply for paternity leave, and the other should apply for adoption leave. Employees can choose to start their SPL on the day the child is born, or the day after.

What if there are complications at birth?

It is important to note that the employee is still entitled to claim Statutory Paternity Leave and pay if the baby is stillborn (from 24 weeks of pregnancy) or born prematurely at any point during the pregnancy.

In these circumstances, employers should also show sensitivity to what will be an incredibly difficult situation for the parent. Many give grieving parents the option of a phased return to work, starting with shortened days or weeks. Flexible working arrangements could also help.

What is Statutory Paternity Pay?

Statutory Paternity Pay (SPP) is the amount of money an employer must pay an employee whilst they are on paternity leave. It is a principal component of the paternity leave package. Naturally, it also has important implications for a company’s payroll.

The weekly rate for SPP is the same as for statutory maternity pay. Either:

• 90% of the employee’s normal weekly earnings or 
• The prescribed statutory rate (£172.48 per week from 2 April 2023)

The employer should calculate both of these amounts and then pay whichever is lower. Tax and National Insurance will also be deducted from the total owed.

Some employers may offer enhanced contractual paternity leave and pay – we explain what that could look like, below.

Who is eligible for SPP?

The rules around eligibility for SPP are almost the same as for taking paternity leave. The only additional requirement is that the employee’s average earnings must not be under the lower earnings limit for National Insurance purposes (as is the case for maternity pay).

No changes for 2024 have yet been announced, and since 2023, the National Insurance lower earnings limit has been capped at £123 a week (before tax). If the employee earns less than this amount, they will not be eligible for SPP, although they can still take Statutory Paternity Leave.

How do I pay SPPs?

SPP is paid out during the one or two weeks taken as paternity leave. When the employee submits their application to go on SPL, they must simultaneously state whether they want to receive one or two weeks of payments and when these should start.

The SPP period starts the same day as an employee’s paternity leave starts. Because it is a weekly payment, it should be issued on the same weekday for one or two weeks (whichever the employee chooses).

The money should be delivered to the employee via the same program or method used to send out their normal payslip.

What if I’m self-employed?

Unfortunately, the rules around SPL are not as all-encompassing as maternity pay. There is currently no form of statutory paternity allowance for fathers who are self-employed.

Sole traders are instead expected to take unpaid time off work to care for their newborn.

Statutory Paternity Pay for small businesses

It’s worth pointing out that Statutory Paternity Pay is a legal requirement for employers.

SMEs face a civil penalty from HM Revenue and Customs (HMRC) if they fail to pay the correct amount, or clearly explain why an employee might be excluded from payments.

It is important to be very clear in your employment handbook or contracts exactly when and how much SPP employees will receive. Any mistake that could affect employees’ wages, work hours and wellbeing could have consequences for worker-employer relationships.

How do small businesses calculate SPP?

Ahead of working out how much a staff member is due, the person in charge of payroll will need five key bits of information:

1. The Average Weekly Earnings (AWE) of the employee
2. The date your employee wants their leave to start
3. The date your employee joined the company
4. The employee’s gross pay and the dates they are paid
5. Their declaration of family commitment (signed by the employee)

Calculate Average Weekly Earnings

As with maternity leave, AWEs are based on pay received during the ‘relevant period’ (the eight week period before the qualifying week).

The end of the relevant period is the last normal payday on, or before, the Saturday of the qualifying week.

For employees paid weekly:

GOV.UK example: An employee is paid weekly and the baby is due on 23 March 2024:

In the above example, the relevant period is 21 October to 15 December. Employers should add up all the earnings paid between these dates and divide the result by eight (the number of weeks in the relevant period).

So if the employee earned £1,600 between these dates, their average weekly earning would be £200.

90% of this amount would be £180. Because this is higher than the statutory rate of £172.48, the employee would instead be paid the statutory rate.

For employees paid monthly:

If an employee would normally be paid monthly, the process for calculating AWEs looks a little different.

GOV.UK example: An employee is paid monthly and the baby is due on 23 March 2024:

In this instance, the relevant period is 30 September to 30 November. If the employee has earned £1,600 between these dates, the employer should:

1. Divide this figure by two (number of months in the relevant period)
2. Multiply by 12 (number of months in the year)
3. Divide the result by 52 (number of weeks in the year)

Using this formula, the company can determine its employee’s paternity payments would be 90% of £184, or £165 per week. As this is lower than the statutory rate, the company will pay this amount instead of the statutory rate.

Can employers reclaim Statutory Paternity Pay?

Because SPP is a government-funded benefit, all employers can reclaim some, if not all, of their paternity payments from HMRC. Most excitingly, small business owners can actually make money back if they issue out SPP.

UK SMEs which qualify for small employers’ relief can claim back 100% of SPP, plus an additional 3%. Firms are classed as a small employer if their NI contributions were £45,000 or less in the tax year prior to the employee’s qualifying week.

To claim the money back, the organisation simply needs to submit an Employer Payment Summary (EPS) to HMRC.

This must be sent by the 19th of the month after the one that you’re reclaiming pay for (eg. a claim for two weeks of SPP issued in the month of July would need to be submitted before August 19th).

Enhanced paternity leave and enhanced paternity pay

It won’t have escaped your notice that SPP is hardly a generous allowance. For many new parents, going on SPL means dealing with a significant drop in income at a time when household costs are already going up.

Research shows that only 21% of eligible fathers are currently taking advantage of SPL, with more than half of families reportedly struggling financially when dads take paternity leave.

Financial stress will have a negative impact on employee health and wellbeing. But not spending time with their newborn or helping their partner will likely cause equal strain. Experts are calling for bosses to improve offerings for new dads by subscribing to Enhanced Paternity Leave (EPL).

EPL is offered to employees on top of Statutory Paternity Pay. Typically, employers will offer the new dad full pay during their time taken off (also known as Enhanced Paternity Pay or EPP).

Do employers have to offer Enhanced Paternity Pay?

There is no legal obligation to offer Enhanced Paternity Pay or leave at your company. In today’s economy, this news might comfort SME owners who are worried about whether their business overheads could survive the payments.

Nonetheless, enhanced paternity pay could also be a game changer when it comes to organisational culture. Going that extra mile will ensure working parents feel goodwill towards both employer and company, lowering staff turnover and making recruitment easier.

Plus, given that SPP can be claimed back from HMRC, it’s not too costly to consider. That could be why research has found that 61.5% of UK organisations now pay some form of EPL.

Kate Palmer is HR Advice and Consultancy Director at Peninsula, an employment law firm. Stressing the benefits of paternity leave for an employer, Palmer says, “enhanced paternity leave can boost employee satisfaction and commitment, and ultimately retention.”

An Enhanced Paternity policy is a very broad idea, so it’s fine to take baby steps. For example, you could allow all employees to take two weeks’ paternity leave, regardless of how long they have worked at the company.

Shared Parental Leave: how does it work?

When Statutory Paternity Leave was introduced in 2003, it was seen as a progressive measure that would solve the issue of gender inequality in the workplace. Some 20 years later, however, and a maximum of two weeks paid time off (versus 39 weeks for maternity leave) no longer feels like enough.

Instead, many UK parents are choosing to split care and career responsibilities more equitably using the policies of Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP).

First introduced in 2015, the perk gives two people the option to share up to 50 weeks of leave (and up to 37 weeks of pay) in the year after they have had a baby or adopted a child.

The father can (and should) use his paternity leave allowance on top of shared leave. However, when it comes to long-term responsibilities, Shared Parental Leave is a great way to ensure that the duty of care does not weigh heavier on one partner’s shoulders.

How is Shared Parental Leave different to Statutory Paternity Leave?

They might (confusingly) share the same acronym, but there’s a lot of ways these two policies contrast. Here’s a quick breakdown of the key differences:

Statutory Shared Parental Pay vs. Statutory Paternity Pay 

How to start Shared Parental Leave or Shared Parental Pay

Switching to Shared Parental Leave after SMP and Statutory Parental Leave is largely the responsibility of the mother to inform her employer.

As there are greater protections in place when it comes to Statutory Maternity Leave, it is up to mum to decide when she wants to switch policies and inform of her intentions. Naturally, it’s a conversation her partner will need to have with their own employer, too.

Keep in mind that a person cannot legally return to work before they have taken the compulsory two weeks of SML after giving birth (four weeks if they work in a factory).

This means Shared Parental Leave cannot start until at least two weeks after the baby is born, and only when the mum is ready to return to work.

It is not possible to go back on maternity leave once the start date for Shared Parental Leave has begun, so both parents must be 100% certain about the decision.

Conclusion

Statutory Paternity Leave is a valuable benefit for both working fathers and mothers in the UK. Combined with SPP, it ensures fathers are able to take time off to be with, and support, their family.

As Palmer argues, “paternity leave is a vital part of working parents’ rights. Without it, employees and their families would be placed under strain, which could lead to long-term problems, such as failing to build a secure bond with their baby.”

Given it is ultimately a business cost, it is tempting to view Statutory Paternity Leave as an obstacle. But employers should also look at enhanced paternity pay – and other parental policies such as Shared Parental Leave – as tools for attracting, and retaining, a talented and diverse employee base.

Still, the complexities around these policies mean it’s anything but child’s play to figure out what to do. This guide enables employers to understand the rules around eligibility, timing, and payment, ensuring they protect employee rights, and prevent expensive errors.