Paternity leave

The problem

The head chef who started working at your hotel six months ago has asked if he can take three weeks' paternity leave to support his girlfriend when their child is born. The baby is due in four months. Your hotel is due to host a major event at that time and you are concerned about the effect his absence will have. Are you obliged to allow him to take this time off, and do you have to pay him?

In summary, employees must satisfy the following conditions in order to qualify for paternity leave. They must:

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  Have or expect to have responsibility for the child's upbringing, or be taking the time off to support the mother.

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  Be the biological father of the child, or the mother's husband or partner.

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  Have worked continuously for the employer for 26 weeks, ending with the 15th week before the baby is due.

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  Inform the employer of their intention to take paternity leave by the end of the 15th week before the baby is expected, unless this is not reasonably practicable.

Eligible employees can choose to take either one week's or two consecutive weeks' paternity leave, but not separate weeks or individual days. They can start their leave:

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  From the date of the child's birth, whether earlier or later than expected.

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  From a chosen number of days or weeks after the date of the child's birth, whether earlier or later than expected.

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  From a chosen date later than the first day of the week in which the baby is expected to be born.

Leave must be completed:

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  Within 56 days of the birth date.

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  If the child is born early, within the period from the actual date of birth up to 56 days after the first day of the expected week of birth.

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  Statutory Paternity Pay (SPP) is paid by employers for either one or two consecutive weeks, as the employee has chosen. The rate of SPP is currently £100 a week, or 90% of average weekly earnings if this is less than £100.

Expert advice

On the facts given, the head chef will be entitled to paid statutory paternity leave, as he has fulfilled all of the relevant conditions. Therefore you cannot refuse him this leave, regardless of any effect his absence might have on your hotel.

The head chef must provide evidence of his entitlement to SPP by completing a self-certificate form available from the Department of Trade and Industry website. Completion of this form entitles him to satisfy the notice and evidence conditions for both paternity leave and SPP.

Under statute, you don't have to allow him to take the requested three weeks off as he is entitled to a maximum of only two weeks' paternity leave. However, many parents are entitled to parental leave, which is an additional type of leave and entitles qualifying parents to 13 weeks' unpaid leave. To be entitled to parental leave, in addition to certain other conditions, employees must have at least one year's continuous service with their employer so the head chef doesn't qualify.

The hotel may have a written policy giving employees rights over and above the minimum rights set out in statute. Even where there is no written policy, there may be an unwritten policy which has arisen through custom and practice.

While you may feel frustrated about the timing of the head chef's requested leave, if you don't allow him to take his statutory or enhanced contractual paternity you could face a tribunal claim.

Check list

Check written policy on paternity and parental leave, and whether employees may be entitled to pay or leave in addition to the statutory minimum by virtue of practice.

Beware!

Employees are protected from suffering unfair treatment or dismissal for taking, or seeking to take, paternity leave. As with other types of unfair dismissal, if employees are successful in such a claim, an employment tribunal can make an award of as much as £63,100.

Contacts

Peter Moody and Stephanie Slanickova
Tarlo Lyons
020 7405 2000

Advisory, Conciliation and Arbitration Service (Acas)
08457 474747, www.dti.gov.uk