John Charlton Employers' Law Magazine

The abolition of the default retirement age will have several knock-on effects for employers. John Charlton points out what is most at risk.

With the ramifications of the default retirement age (DRA) approaching at a speed of knots, employers face many uncertainties except one - that they will have to deal with more and more employees working past the age of 65.

Research from insurance company Prudential - the "Class of 2011" survey - showed that among 1,500 people due to retire in 2011, 62% were considering postponing their retirement and continuing to work. Around 55% of the "Class of 2011" said that they would look to work for another two to five years, with one in 10 looking to work for another five to 10 years.

Labour market statistics, published in February 2011, for the fourth quarter of 2010 show that the number of workers aged 65 and above in employment was 874,000 in the three months to December 2010, an increase of 23,000 compared with the previous quarter. The total in employment is up 104,000 (13.5%) on the previous year.

Alan Beazley, policy and research adviser at the Employers Forum on Age, says: "Employers should not worry about hordes of workers hanging on until they drop. Those who do want to stay probably want to do so only for two to three years maximum, and there is evidence that most will make retirement decisions based on a wide range of factors, including, for example, whether their partner works, what wealth they have and their health."

Employers facing a rise in workers aged over 64 must be aware of the risks that they face in meeting the rigours of the scrapping of the DRA on 1 October 2011. They should be adjusting policies and practices now - for example, 30 March 2011 is the final date on which they can issue the minimum six months' notice of retirement, which will be effective from 1 October.

Employers must ensure that they understand the provisions around the scrapping of the DRA on 6 April 2011. They should be adjusting policies and practices now. For example, 5 April 2011 is the final date on which they can issue a notice of retirement using the default retirement age and statutory procedure, and this is only where the employee will have reached age 65 (or the employer’s higher normal retirement age) by 30 September 2011.

David Brown, associate at Simpson Millar, says: "Employers that are yet to review their contracts, policies and procedures should make it an immediate priority. Failing to do so could lead to expensive claims in the not-so-distant future - especially as the compensation limit for age discrimination claims remains uncapped."

There are many risks for employers to consider, including:

Contractual retirement age

This involves retiring people as they approach 65 on the grounds that it is a proportionate means of achieving a legitimate aim. The Government calls this the employer-justified retirement age. Georgina Jones, associate, Sacker & Partners, says: "It's technically feasible, but relatively difficult as the Government would likely be opposed to it. It would have to be non-discriminatory and a proportionate means of achieving a legitimate aim, for example in succession planning."

Jo Broadbent, counsel, Hogan Lovells, adds: "Workforce planning has been found to be a legitimate aim in some cases and the ECJ [European Court of Justice] has been willing to accept that collectively agreed retirement ages are a legitimate way of giving employment opportunities to younger workers. However, employment tribunals to date have been more sceptical."

Cutting benefits to employees aged 65 and over

Brown says: "Employees kept on after the age of 65 are able to claim age discrimination if their benefits are less favourable than those of other age groups. Insured medical benefits tend to be more expensive to provide for those who are older. To meet this concern the Government intends to bring in exceptions for certain insured benefits, such as medical benefits, which will apply to staff over the state pension age."

Retirement through compromise agreements

Broadbent says: "Once the DRA is abolished, employers could choose to force employees to retire and ask them to sign compromise agreements waiving unfair dismissal and age discrimination claims. There is ongoing uncertainty about whether compromise agreements can be used to compromise claims under the Equality Act 2010, because of the way in which the relevant section has been drafted."

Broadbent believes that employers will be wary of using such agreements and affected employees may demand "relatively substantial compensation". She also warns that employers should ensure that any agreement is "without prejudice", meaning that the parties agree not to use the agreement as evidence in a later legal claim.

"If the conversation [on a compromise agreement] is not without prejudice, the employee might be able to rely on it in a subsequent claim as evidence that the dismissal was discriminatory and unfair," says Broadbent.

Alex Lock, partner at Beachcroft, adds: "There are no increased risks provided that an employer and employee are able to agree terms and the compromise agreement is validly executed, then the risk is the same as for any other type of claim."

Dismissals on the grounds of incapacity/lack of capability

The DRA gave employers a way to show workers near retirement the door if their performance fell below par. That will change. Broadbent says: "Once the DRA goes, that option will no longer be available and employers will have to manage underperformance or ill health for older members of the workforce in exactly the same way as they would for a younger employee. Consistency of treatment will be especially important. There should be clear evidence of why the employer is taking action, to avoid any suggestion that it is simply because of the employee's age."

If underperforming or ill older employees are treated differently to younger colleagues, they will have a strong case to pursue an age discrimination claim.

Dealing with age-related disabilities

Jane Moorman, partner, Howard Kennedy, says: "The employer would notionally have the same obligation to make adjustments for an employee who was, say, 66 who faced a disability as they would for an employee who was 46 with the same disability. The only factor which might affect the extent of the adjustment would be the cost of the adjustment having regard to the period the employee might reasonably continue in employment. For example, if an employee of 35 were to lose their sight it may be reasonable to provide them with Braille or other training.

"By contrast, an older worker may not be able to give an employer the reassurance that they will continue for any length of time and that may be a factor which an employer may take into account in determining whether or not it is reasonable to incur a cost to meet an adjustment. Whether or not it is reasonable for an employer to take into account the potential longevity of the employee's employment will depend upon the potential costs being faced and the likelihood that the employee will wish to continue in employment for a reasonable period. This is likely to be an area for dispute with employees going forward."

Handling performance management issues

James Willis, a senior associate at Thomson Snell & Passmore, says: "As in any case of underperformance, employers must clearly document their concerns. Employees should be counselled on what is required of them; they should be given time to improve and be provided with the relevant support and coaching. This process can take time and require a series of letters, meetings and warnings. Only once reasonable efforts to improve an employee's performance have failed should an employer consider dismissing an employee."

Moorman adds: "Creating clear career paths for staff will be difficult for employers that are faced with an ever-ageing population."

Retiring an employee aged 65 and over for declining performance

Willis says: "An employer should ensure it goes into any such conversation with its eyes wide open. In reality, an employer ought to be tackling performance or health issues in relation to older workers in exactly the same way as it would for younger workers. If an employer wishes to seek to persuade an employee to retire, then it needs to be prepared to consider offering some sort of termination package under the terms of a compromise agreement, in order to 'buy off' the risk of unfair dismissal and age discrimination claims."

Calculating redundancy payments for those aged 65 and over

Justin Govier, partner at IBB Solicitors, says: "Statutory redundancy pay calculations for those 65 or over are not affected by the abolition of the DRA. Since 1 October 2006, all employees, regardless of their age, have had an entitlement to a redundancy payment. The qualifying period remains at two years' service and the maximum amount of service that can be taken into account remains at 20 years. Employers with a written contractual redundancy policy should ensure that these policies are reviewed to ensure that they are not discriminatory."

Excluding those aged 65 and over from training/development programmes

Broadbent says: "When offering training opportunities, employers will need to consider how long an employee will have to remain in employment before the business will benefit from the training that has been provided.

"If it is clear that the employee will not remain in employment for that period, it may be possible to justify excluding an older employee from the training. Employers will need to take care with this sort of argument where it is not clear how long the older employee will stay - younger employees who are offered training could also leave employment before the business has benefitted, but are nonetheless still offered the training. This would make it more difficult to argue that the employer was justified in not offering the training to its older employees."

Equal opportunities policies

Broadbent says that equal opportunities policies should be changed once employers decide whether or not they will manage without a retirement age or if they will rely on a contractual retirement age.

"Once that decision is made, equal opportunities policies and other documentation, such as contracts of employment, should be amended accordingly, either by removing references to retirement, or by explaining the employer's policy with regard to retirement and the procedures to be followed," he explains.

Beachcroft's Lock adds: "These policies should be amended to reflect the fact that employers cannot rely on someone meeting a certain age to leave the business."

XpertHR provides more information on the abolition of the default retirement

Clare Gregory, partner, DLA Piper

Morgan v Network Europe Group Ltd

FACTS

Mr Morgan commenced employment as a storekeeper with Network Europe Group Ltd on 1 November 2005. He signed a statement of terms and conditions and confirmed receipt of the company handbook. Neither made any provision for payments during a lay-off.

In March 2008, Mr Morgan was issued with a new handbook that stated that, together with the contract of employment, it set out the main terms and conditions of employment. The new handbook included a provision providing for lay-off without pay, other than the statutory guarantee payment. The provision was not specifically brought to employees' attention.

Network Europe Group Ltd alleged that employees had also been issued with new contracts of employment, but no copy was produced. Mr Morgan brought a claim for unauthorised deductions from wages in respect of a period of lay-off between 27 February and 22 May 2009.

DECISION

The employment tribunal held that Mr Morgan was bound by the new handbook. Network Europe Group Ltd had the contractual right to lay him off without full pay and the unauthorised deductions claim failed. Mr Morgan appealed to the Employment Appeal Tribunal (EAT). The EAT overturned the decision of the employment tribunal.

The EAT held that there was no agreed variation of the contract of employment. Mr Morgan could not be deemed to have accepted the new lay-off term. The term was not drawn to his attention and it was not one that affected Mr Morgan until he was actually laid off in 2009, at which point he promptly raised a grievance. This was consistent only with him not accepting the lay-off variation.

It said that there will be deemed acceptance only where the employee's conduct in continuing to work is only referable to having accepted the new terms. The EAT found that Network Europe Group Ltd had made unauthorised deductions in respect of his normal pay, less the guarantee payments received for the period of lay-off.

IMPLICATIONS

This case demonstrates the importance of getting explicit employee agreement to changes to terms and conditions, rather than attempting to rely on deemed acceptance, particularly where the changes could have adverse financial consequences for the employee.

Employees should be asked to sign and return a copy of new contractual terms to confirm that they agree to be bound by them. The imposition of a change by the employer (rather than by agreement or by termination of existing contracts and re-engagement) means that the employee has an ongoing claim for breach of contract and the employer may be forced to reverse the change.

The main issue will be whether or not the employee can be said to have impliedly accepted the change by reason of his or her continuing in employment. As this case shows, it will be difficult for the employer to show deemed acceptance of the new terms in circumstances where the change in question will not impact on the employee until a later date. This would also be the case where, for example, an employer attempts to change contractual sick pay, maternity or redundancy benefits.

As the change may not affect employees until a later stage, the mere fact that the employee does not explicitly object may not be sufficient to show acceptance, although it will assist the employer if the proposed change has been brought clearly to the attention of the employees.

Paras Gorasia, barrister at Kings Chambers

Dealing with an employee who believes that he or she has been subject to a contravention of equality legislation and submits a discrimination questionnaire.

A person who believes that he or she has been subject to a contravention of equality legislation has the statutory right to ask questions of the person whom he or she believes was responsible for the contravention. The legislative framework surrounding discrimination questionnaires has undergone significant change as a result of the Equality Act 2010 coming into force last year. There are new forms for discrimination questionnaires and for responses from recipients.

Rather like being read your rights, anything you don't say and may later rely on in court could harm your defence. You have eight weeks to reply to the questionnaire, and it is essential that you give as full and consistent a response as you can. Your responses are admissible as evidence in proceedings under the Equality Act and a tribunal or court can draw an inference from a failure to respond to a question or from an evasive or equivocal response.

It is, therefore, imperative that you take the time to prepare a detailed response to the questionnaire and seek legal advice as and when required. Legislation provides that a discrimination questionnaire must be served either before tribunal proceedings are started, or within 28 days of commencement of proceedings. If you have not received a claim from her yet, you can expect one in due course.

Your employee may allege that her male colleague obtained a promotion over her because she is a woman, and argue that she is better qualified for the promoted position than he is. As such, you should provide:

• details of the selection process you employed in determining who would be promoted;
• statistics (if available) about the gender balance with respect to the promoted position across the organisation; and
• an explanation as to the reasons for promoting the male colleague over the female employee.

This is an opportunity to explain to the employee the reasons for her non-selection and to make clear that the selection of the male colleague was completely unconnected to gender. You should also specify, as far as possible, the attributes that their successful colleague had which made them more suitable for the promoted position.

Paras Gorasia, barrister at Kings Chambers

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Extract from People Management online

Employers who decide not to keep a company retirement age after the abolition of the DRA in October should alter their long-term incentive arrangements to reduce the risk of discrimination claims

Employees whose employment ends because they retire, or are dismissed for redundancy or ill-health, do not usually lose their entitlements under company share schemes. Employees who leave before retirement through voluntary resignation, or who are dismissed for misconduct, are often penalised by losing their entitlements under employers’ share schemes and other long-term incentive arrangements.
 
Since age discrimination became unlawful in 2006, younger employees whose entitlements are decreased or forfeit when they leave have been able to argue that this treatment constitutes age discrimination, because employees who retire are receiving preferential treatment linked to their age.

Even though preserving the share entitlements of those retiring while penalising younger leavers may be age discrimination, employers are able to use a justification defence. Allowing retirees to retain their benefits when others lose theirs on resignation can be justified as a measure designed to encourage and reward loyalty if it can be shown that it’s a “proportionate means of achieving a legitimate aim”.
 
However, the "rewarding loyalty" argument may not be seen as proportionate and therefore defensible if, for example, somebody retiring at 65 who has only worked for the organisation for 5 years, is treated more favourably under the scheme than someone leaving at age 45 who has worked there for 20 years.
 
It may be difficult to show that allowing employees to retain benefits at retirement, whenever that occurs, while penalising them if they resign before retirement, is proportionate without statistical or other evidence demonstrating the arrangements actually do facilitate loyalty.

The abolition of the default retirement age complicates matters further. Employers can retain a compulsory company retirement age if they can justify it, but if they decide to remove the retirement age, they will have to update their bonus and incentive documentation to reflect this. If they still want the flexibility to reward employees staying with them until the end of their careers with more favourable treatment, they can retain the discretion to do this within a scheme or adopt a more flexible definition of retirement than departure at age 65.

Employers will need employees’ consent to amend existing contractual entitlements with regard to shares and will need to comply with HMRC requirements when dealing with tax-approved share incentive arrangements. Even if they do adopt a more flexible approach to share option arrangements, complaints of age discrimination may still arise if, in practice, the discretion to treat leavers favourably with regard to share schemes is always exercised in favour of those who would have been retiring under the old arrangements.

Extract from XpertHR

The right to additional paternity leave came into force in April 2010, and affects the parents of children with a due date on or after 3 April 2011. Essentially it allows the mother of a child to "donate" some of her maternity leave entitlement to the father, who can then take up to 26 weeks off work to care for the child. 

Introduction

It had been a long-term aim of the previous Labour Government to encourage fathers to take a more active role in their children's upbringing, and to enable both fathers and mothers to obtain a better balance between their family responsibilities and their working life. Statutory paternity leave was introduced in 2002, but was limited to two weeks' leave paid at the lower rate applying to statutory maternity pay (£124.88 from 4 April 2010).

The Work and Families Act 2006 introduced a right to take up to 26 weeks of additional paternity leave. This (as the name suggests) is in addition to, rather than a replacement for, the original two-week paternity leave entitlement, which is now referred to as "ordinary paternity leave".

Whereas ordinary paternity leave is designed to be taken immediately after the birth of a child, when the mother is still on maternity leave, additional paternity leave is an extended period of leave to be taken where the mother has returned to work. Because it must be taken during the first year of the child's life, full entitlement to additional paternity leave can be taken only where the mother has returned to work early. Essentially the mother can donate up to 26 weeks of her untaken maternity leave to her partner for her partner to take care of the child.

The bulk of the provisions on additional paternity leave are set out in the Additional Paternity Leave Regulations 2010 (SI 2010/1055), with the details about payment of additional statutory paternity pay set out in the Additional Statutory Paternity Pay (General) Regulations 2010 (SI 2010/1056). Both sets of Regulations came into force on 6 April 2010.

Qualification for the right to additional paternity leave

The new right to additional paternity leave applies only in relation to children whose expected week of birth begins on or after 3 April 2011 (reg.3(1) of the leave Regulations). What matters is when the expected week of birth is, rather than the actual week of birth. Where a child is expected on, say, 5 April 2011, but is actually born on 31 March 2011, the new regime will still apply.

Part of the new right consists of protection from dismissal or detriment as a result of qualifying for, or exercising the right to take, additional paternity leave (regs.33 and 34). Obviously there is a danger that an individual could be victimised on this ground before the child is born, so reg.3(3) provides that claims on this basis can relate to any dismissal or detriment occurring on or after 6 April 2010.

Entitlement to additional paternity leave

Only employees, as opposed to workers, are entitled to take additional paternity leave. An employee is entitled to take additional paternity leave only if the purpose in so doing is to care for the child in question (s.80AA(1) of the Employment Rights Act 1996). Thus an employee who sought to take additional paternity leave because of other family responsibilities, such as the need to care for an elderly parent, would not be entitled to take the leave.

To qualify for additional paternity leave, an employee must also have at least 26 weeks' service with the employer as at the end of the 15^th week before the child's expected week of birth (reg.4(2)(a) of the leave Regulations). Further, the employee must remain in employment with the employer until the week before the first week of additional paternity leave (reg.4(2)(b)).

The employee must be either the father of the child, or the spouse, partner or civil partner of the child's mother (reg.4(2)(c)). A partner is someone of either sex who lives with the mother in an "enduring family relationship" but is not her parent, grandparent, sibling, aunt or uncle.

The employee must also have, or expect to have, the main responsibility (apart from any responsibility of the mother) for the child's upbringing (reg.4(2)(d)).

The following examples illustrate how these requirements work.

• If A is the father of the child but does not live with the mother, A will qualify for additional paternity leave provided that there is no one else (apart from the mother) who will have the main responsibility for the child's upbringing.
• If A is the father of the child, but the mother is now living with a new partner who will share in her responsibility for the child's upbringing, A will not be entitled to additional paternity leave.
• If A is married to the mother but is not the biological father of the child, A will be entitled to additional paternity leave, provided that he expects to have the main responsibility for the child's upbringing, along with the mother.
• If A is the same-sex partner of the mother, and expects to share the main responsibility for the child's upbringing with the mother, A will qualify for additional paternity leave while the biological father of the child will not.

For an individual to qualify for additional paternity leave, the mother must also meet some conditions. She must be entitled to one or more of maternity leave, statutory maternity pay and maternity allowance, and must have returned to work (reg.4(5)).

Only one period of additional paternity leave can be taken, regardless of how many children are born as a result of the same pregnancy (reg.4(6)).

Duration of additional paternity leave

An individual entitled to additional paternity leave may take between two weeks' and 26 weeks' leave. The leave must be taken in multiples of a week and must be taken as one continuous period. It cannot begin until at least 20 weeks after the birth of the child and must be completed within 12 months of the birth (reg.5 of the leave Regulations). If the employee is dismissed after the additional paternity leave has begun, the additional paternity leave ends at the time of the dismissal (reg.29).

Notice of additional paternity leave

The most onerous requirements placed on an employee seeking to take additional paternity leave are the requirements to give the employer full and adequate notice of the fact. At least eight weeks before the additional paternity leave start date, the employee must give the employer: a leave notice; an employee declaration; and a mother declaration.

The leave notice: The leave notice identifies the child's expected week of birth, the actual date of birth and the dates that the employee has chosen as the additional paternity leave start and end dates.

The employee declaration: This is a signed declaration from the employee stating that the purpose of the leave will be to care for the child, and that he or she:

• is the child's father, or the spouse, partner or civil partner of the child's mother; and
• has, or expects to have, the main responsibility (apart from any responsibility of the child's mother) for the child's upbringing.

The mother declaration: This is a written declaration from the mother stating:

• her name, address and national insurance number;
• the date on which she intends to return to work;
• that the employee is the child's father, or her spouse, partner or civil partner, and has, or expects to have, the main responsibility (apart from any responsibility she has) for the child's upbringing;
• that, to her knowledge, the employee is the only person claiming additional paternity leave in respect of the child; and
• that she consents to the employer processing the information in her declaration.

On receipt of the employee's leave notice, the employer may, within the next 28 days, request that the employee provide a copy of the child's birth certificate and/or the name and address of the mother's employer (or business address if she is self-employed) (reg.6(3) of the leave Regulations). Where the employer exercises this option, the employee must provide the information within 28 days of the request.

The policy behind these provisions is that the parents of the child should "self-certify" their entitlements in relation to additional paternity leave. One option for the Government would have been to place a duty on the mother's employer to confirm, for example, her return to work. However, it was felt that this would create too much red tape for organisations and could also raise problems of confidentiality and data protection. Some employers may be concerned that the self-certification system is open to abuse. However, an employer that suspects that a false claim is being made will have enough information to verify the details given by the employee and the mother. Making a false claim would clearly amount to gross misconduct, and would also be likely to amount to fraud.

Response to notice of additional paternity leave

Where the employee has given notice of leave, the employer must, within 28 days of receipt of the notice, confirm the relevant dates of additional paternity leave to the employee in writing (reg.8 of the leave Regulations). If it does not, this will impact on the employer's ability to prevent the employee returning early from paternity leave where the employee has not given the required notice (reg.30(6)).

The employer must acknowledge any varied notice of the start date in the same way.

Variation or cancellation of additional paternity leave

Where, after notice of additional paternity leave has been given, the employee's circumstances change so that the employee stops being the mother's spouse, partner or civil partner, or no longer expects to have responsibility for the child's upbringing (or the employee discovers that he is not the child's father after all), as soon as practicable, the employee must give the employer a "withdrawal notice" (reg.6(4)).

If the withdrawal notice is given less than six weeks before the additional paternity leave is due to start, and it is not reasonably practicable for the employer to accommodate the change in the employee's arrangements, the employer can require the employee to take a period of additional paternity leave. This will start on the date specified in the employee's leave notice and end no later than whichever is sooner of six weeks after the withdrawal notice was given and the end date specified in the leave notice. This could arise, for example, where the employer has already deferred work or engaged a replacement employee to cover the employee's expected absence. Such leave will be deemed additional paternity leave even though the employee technically no longer qualifies for it (reg.6(5) and (6)).

Where the employer requires the employee to take leave in this way, it must notify the employee of the dates of the leave as soon as reasonably practicable, and in any event before the start of the leave (reg.8(2)).

Where the employee has given the withdrawal notice after the beginning of the additional paternity leave period, and it is not reasonably practicable for the employer to accommodate the change in the arrangements, the employer can require the employee to remain on additional paternity leave. This will end no later than six weeks after the date on which the employee gave the employer the withdrawal notice, or on the end date specified in the employee's leave notice, whichever occurs first. Such leave will be deemed additional paternity leave even though the employee technically no longer qualifies for it (reg.6(7) and (8)).

Death of the mother

The general scheme of additional paternity leave assumes that the mother has returned to work from maternity leave. However, the Regulations also provide for additional paternity leave to be taken in cases where the child's mother has died. In these circumstances, the rules are amended to provide that additional paternity leave can be taken provided that the mother would have been entitled to maternity leave, maternity pay or maternity allowance but for the fact that she has died (reg.10 of the leave Regulations).

The options that an employee has for taking additional paternity leave are also amended when the mother has died (reg.11). Additional paternity leave can be taken at any time from the mother's death up to 12 months after the child's birth. The minimum period of leave that can be taken is two weeks and the maximum is 52 weeks, thus allowing the employee to take up to a year of additional paternity leave where the mother has died during childbirth.

The employee must give the employer notice of the additional paternity leave "as soon as reasonably practicable" after the mother's death, and in any event no later than eight weeks after the death (reg.12). The leave notice must specify the child's expected week of birth and actual date of birth, and set out the dates for the start and end of additional paternity leave that the employee has selected. The employee must also make a written declaration to the employer that the purpose of the leave will be to care for the child and that he or she satisfies the eligibility criteria for additional paternity leave (that the employee is the child's father or would have been the spouse, partner or civil partner of the child's mother, had it not been for her death). The declaration must also set out the mother's name and last address, her national insurance number and the date of her death. If requested to do so, the employee must provide the employer with a copy of the child's birth certificate and the name and address of the mother's employer.

Early return to work from additional paternity leave

If the employee intends to return to work earlier than the date notified to the employer, the employee must give the employer at least six weeks' notice of the return date (reg.30 of the leave Regulations). If the employee attempts to return without giving such notice, the employer is entitled to delay the return so as to ensure that it has actually had six weeks' notice of the employee's return.

This does not apply where the employer has failed to confirm the employee's paternity leave dates in writing, within 28 days of receipt of the notice to take paternity leave, as required by reg.8.

Work during additional paternity leave

In line with recent changes made to the rules on maternity leave, reg.26 of the leave Regulations provides that employees may carry out up to 10 days' work for their employer during the additional paternity leave period without bringing the leave to an end. Any work done on a day counts as one day's work, and work can include training or any activity undertaken for the purposes of keeping in touch with the workplace. Reasonable contact from time to time between the employer and the employee does not bring the additional paternity leave period to an end, thus allowing for discussions about news from the workplace or conversations about the employee's return to work.

Terms and conditions during additional paternity leave

All of an employee's terms and conditions of employment are preserved during additional paternity leave, except those relating to the payment of wages and salary (reg.27 of the leave Regulations).

Redundancy during additional paternity leave

Regulation 28 of the leave Regulations sets out a special right for an employee to be offered alternative work if his or her position becomes redundant during additional paternity leave. Regulation 28 provides that, where there is a suitable alternative vacancy, the employee is entitled to be offered alternative employment under a new contract of employment that is not substantially less favourable than the old one. This mirrors the right of redundant employees on maternity and adoption leave to be offered any suitable vacancy.

The right to return to work after additional paternity leave

In almost all cases, an employee who takes additional paternity leave will be entitled to return to the job in which he or she was employed before the leave began, with seniority intact and on terms and conditions no less favourable than those that would have applied but for the absence on additional paternity leave (reg.31 of the leave Regulations).

If, however, the additional paternity leave follows on immediately from a period of additional maternity or adoption leave, or a period of more than four weeks' parental leave, and it is not reasonably practicable for the employer to permit the employee to return to the same job, the employer can provide the employee with a suitable alternative job.

Employment protection

Under regs.34 and 35 of the leave Regulations, an employee is protected from detriment, dismissal or selection for redundancy on the basis that he or she took, or sought to take, the benefits of additional paternity leave, or because the employer believed that he or she was likely to take additional paternity leave. It is also unlawful for an employer to dismiss or subject to a detriment an employee who does not return from additional paternity leave on time where the employer has failed to notify the employee of the date of the end of the leave and it is reasonable for the employee to believe that it has not ended. The same applies where the detriment or dismissal is based on the employee's refusal to agree to undertake work (keeping-in-touch days) during the additional paternity leave period.

Additional statutory paternity pay

The Additional Statutory Paternity Pay (General) Regulations 2010 set out the circumstances in which an employee taking additional paternity leave will qualify for paternity pay. In addition to the requirements set out previously to qualify for additional paternity leave, reg.4 of the pay Regulations provides that the employee must be an employed earner earning at least the national insurance contributions lower earnings limit (£97 from 6 April 2010) for the eight weeks ending with the 15^th week before the expected week of birth. The mother of the child must be entitled to either maternity allowance or statutory maternity pay, and must have returned to work not less than two weeks after the birth of the child, but at least two weeks before the end of her maternity allowance period or maternity pay period (reg.6).

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Extract from XpertHR

Paternity rights: (02) Company paternity leave policy (employees whose child has an expected week of birth beginning on or after 3 April 2011) (policy).

 When to use this model paternity leave policy

Use this model policy to guide managers and employees in relation to employees' entitlement to both ordinary and additional paternity leave and pay where the expected week of childbirth begins on or after 3 April 2011.

Policy wording

Introduction

This policy sets out the statutory rights and responsibilities of employees who wish to take paternity leave.

The Company recognises that, from time to time, employees may have questions or concerns relating to their paternity rights. It is the Company's policy to encourage open discussion with employees to ensure that questions and problems can be resolved as quickly as possible. As the paternity provisions are complex, employees should clarify the relevant procedures with [name] to ensure that they are followed.

Ordinary paternity leave

An employee whose wife, civil partner or partner gives birth to a child, or who is the biological father of the child, is entitled to two weeks' ordinary paternity leave provided that he/she has 26 weeks' continuous service by the end of the 15^th week before the week in which the child is expected.

Ordinary paternity leave is also available to adoptive parents where a child is matched or newly placed with them for adoption. Either the adoptive father or the adoptive mother may take ordinary paternity leave where the other adoptive parent has elected to take adoption leave. A separate policy is available in respect of adoption leave. In respect of an adopted child, the employee must have 26 weeks' continuous service by the week in which the child’s adopter is notified of having been matched with the child for adoption.

To qualify for ordinary paternity leave, the employee must also have, or expect to have, responsibility for the upbringing of the child and be making the request to help care for the child or to support the child’s mother.

Ordinary paternity leave is granted in addition to an employee's normal annual holiday entitlement. Ordinary paternity leave must be taken in a single block of one or two weeks within eight weeks of the birth or adoption of the child. If the child is born early, it must be taken from the time of the birth but within eight weeks of the expected date of childbirth. Ordinary paternity leave can start either from the date the child is born or placed for adoption or from a chosen number of days or weeks after that date.

Notification of ordinary paternity leave

Where an employee wishes to request ordinary paternity leave in respect of a birth child, he/she must give his/her line manager 15 weeks' written notice of the date on which his/her partner's baby is due, the length of ordinary paternity leave he/she wishes to take and the date on which he/she wishes the leave to commence.

In the case of an adopted child, the employee must give written notice of his/her intention to take ordinary paternity leave no later than seven days after the date on which notification of the match with the child was given by the adoption agency. The notice must specify the date the child is expected to be placed for adoption, the date the employee intends to start ordinary paternity leave, the length of the intended ordinary paternity leave period and the date on which the adopter was notified of having been matched with the child.

If an employee subsequently wishes to change the timing of the ordinary paternity leave, he/she must give 28 days' written notice of the new dates. The employee must also, if so requested, complete and sign a self-certificate declaring that he/she is entitled to ordinary paternity leave and ordinary statutory paternity pay.

Ordinary statutory paternity pay

Pay during ordinary paternity leave will be at a standard rate of £124.88 per week, or at a rate equivalent to 90% of the employee's average weekly earnings if this figure is less than £124.88 per week. However, employees whose average weekly earnings are below the lower earnings limit for national insurance contributions will not be eligible for ordinary statutory paternity pay.

Statutory paternity pay is treated as earnings and is therefore subject to PAYE and national insurance deductions.

Statutory paternity pay can start from any day of the week in accordance with the date the employee starts his/her paternity leave.

Additional paternity leave

Eligible employees may take up to 26 weeks’ additional paternity leave within the first year of their child’s life provided that the mother has returned to work.

Additional paternity leave is also available to adoptive parents within the first year after the child’s placement for adoption, provided that the child’s adopter who elected to take adoption leave (the "primary adopter") has returned to work.

The earliest that additional paternity leave can commence is 20 weeks after the date on which the child is born, or 20 weeks after the date of placement of the child for adoption, and it must end no later than 12 months after that date. Additional paternity leave must be taken as a single block in multiples of complete weeks. The minimum period is two consecutive weeks and the maximum period is 26 weeks.

Additional paternity leave will generally commence on the employee’s chosen start date specified in his/her leave notice, or in any subsequent variation notice (see "Notification of additional paternity leave" below).

During the period of additional paternity leave, the employee’s contract of employment continues in force and he/she is entitled to receive all his/her contractual benefits, except for salary. In particular, any benefits in kind (such as life assurance, private medical insurance, permanent health insurance, private use of a company car, laptop, mobile phone and gym membership) will continue and contractual annual leave entitlement will continue to accrue.

Salary may be replaced by statutory paternity pay for some of the additional paternity leave period if the employee is eligible to receive it. The remaining period of additional paternity leave is unpaid.

Pension contributions will continue to be made during any period when the employee is receiving statutory paternity pay but not during any period of unpaid additional paternity leave. Employee contributions will be based on actual pay, while employer contributions will be based on the salary that the employee would have received had he/she not gone on additional paternity leave.

Employees are encouraged to take any outstanding annual leave due to them before the commencement of additional paternity leave. Employees are reminded that holiday must be taken in the year that it is earned and therefore if the holiday year is due to end during additional paternity leave, the employee should take his/her outstanding entitlement before starting his/her additional paternity leave.

Eligibility for additional paternity leave

In order to be eligible for additional paternity leave, an employee must satisfy each of the following criteria:

• He/she must be the father of the child or married to, the civil partner of, or the partner of, the child's mother, or married to, the civil partner of, or the partner of, the primary adopter, and, in the case of a birth child, expect to have the main responsibility for the upbringing of the child (apart from the mother’s responsibility). In the case of adoption, he/she must have been matched with the child for adoption. In both cases, he/she must be taking the leave to care for the child.
• He/she must have a minimum of 26 weeks' service, as at the end of the 15^th week before the week in which the child is due to be born or, in respect of an adopted child, as at the end of the 15^th week before the week in which he/she was notified of having been matched with the child.
• He/she must remain in continuous employment until the week before the first week of additional paternity leave.
• The mother of the child must be entitled to one or more of maternity leave, statutory maternity pay or maternity allowance. In the case of adoption, the primary adopter must be entitled to one or both of adoption leave or statutory adoption pay. The mother or primary adopter must have returned to work.

Notification of additional paternity leave

Where an employee wishes to request additional paternity leave and pay, he/she must give his/her line manager eight weeks’ written notice of the date on which he/she wishes to take the leave and, if applicable, additional statutory paternity pay to commence. The request form must be in writing and specify, in the case of a birth child, the date on which the child was expected to be born and the actual date of birth or, in the case of an adopted child, the date on which the employee was notified of having been matched with the child and the date of placement for adoption. In both cases, the notice must also specify the employee’s name and intended start date and end date of additional paternity leave and statutory paternity pay.

The employee must also submit a written and signed self-certification form not less than eight weeks before the proposed start date of additional paternity leave and pay stating that the purpose of the additional paternity leave/statutory paternity pay period is to care for the child and that he/she satisfies the relationship eligibility conditions for additional paternity leave and pay.

At the same time, the mother or primary adopter must submit a written and signed declaration form stating:

• his/her name, address and national insurance number;
• the date that he/she intends to return to work;
• that he/she has given notice to his/her employer of returning to work;
• that he/she is entitled to statutory maternity pay, maternity allowance or statutory adoption pay;
• the start date of his/her maternity or adoption pay period;
• confirmation that the employee satisfies the relationship eligibility conditions;
• that he/she consents to the Company processing the information contained in the declaration form; and
• that the employee is to his/her knowledge the sole applicant for additional statutory paternity pay and, in the case of a birth child, also that the employee is to his/her knowledge the only person exercising the entitlement to additional paternity leave in respect of the child.

On request by the Company, the employee must produce the name and business address of the mother’s or primary adopter’s employer and a copy of the child’s birth certificate or, in the case of an adopted child, evidence of the name and address of the adoption agency, the date on which he/she was notified of having been matched with the child and the date on which the agency expects to place the child for adoption. The employee must supply this information within 28 days of it being requested.

The employee is permitted to bring forward his/her additional paternity leave start date, provided that he/she advises the Company in writing at least six weeks before the new start date or, if that is not possible, as soon as reasonably practicable. The employee may also postpone his/her additional paternity leave start date, or cancel his/her additional paternity leave altogether, provided that he/she advises the Company in writing at least six weeks before the original proposed start date or, if that is not possible, as soon as reasonably practicable.

The Company will formally respond in writing to the employee’s notification of his/her additional paternity leave plans within 28 days, confirming the relevant start and end dates of additional paternity leave and pay.

Additional statutory paternity pay

Additional statutory paternity pay may be payable during some of additional paternity leave. An employee is entitled to additional statutory paternity pay if:

• he/she is the father of the child or married to, the civil partner of, or the partner of, the child's mother, or married to, the civil partner of, or the partner of, the child's primary adopter, and, in the case of a birth child, expects to have the main responsibility for the upbringing of the child (apart from the mother’s responsibility) or, in the case of adoption, has been matched with the child for adoption, and in either case intends to care for the child during the additional statutory paternity pay period;
• he/she has a minimum of 26 weeks' service, as at the end of the 15^th week before the week in which the child is due to be born or, in respect of an adopted child, as at the end of the 15^th week before the week in which he/she was notified of having been matched with the child (the "relevant week");
• he/she remains in continuous employment until the week before the additional statutory paternity pay period begins;
• his/her average weekly earnings for the period of eight weeks ending with the relevant week are not less than the lower earnings limit for national insurance contributions;
• the mother is entitled to statutory maternity pay or maternity allowance or, in the case of adoption, the primary adopter is entitled to statutory adoption pay, and the mother or primary adopter has returned to work;
• the mother or primary adopter has at least two weeks of his/her maternity or adoption pay period that remains unexpired; and
• he/she gives proper notification in accordance with the rules set out above.

Any statutory paternity pay due during additional paternity leave will be paid at a standard rate of £124.88 per week, or at a rate equivalent to 90% of the employee's average weekly earnings if this figure is less than £124.88 per week.

Statutory paternity pay is payable whether or not the employee intends to return to work after his/her additional paternity leave.

Contact during additional paternity leave

Shortly before an employee's additional paternity leave starts, the Company will discuss the arrangements for him/her to keep in touch during his/her leave, should he/she wish to do so. The Company reserves the right in any event to maintain reasonable contact with the employee from time to time during his/her additional paternity leave. This may be to discuss the employee's plans for return to work, to discuss any special arrangements to be made or training to be given to ease his/her return to work or simply to update him/her on developments at work during his/her absence.

Keeping-in-touch days during additional paternity leave

An employee can agree to work for the Company (or to attend training) for up to 10 days during additional paternity leave without that work bringing the period of his/her additional paternity leave and pay to an end. These are known as "keeping-in-touch" days. Any work carried out on a day shall constitute a day's work for these purposes.

The Company has no right to require the employee to carry out any work, and the employee has no right to undertake any work, during his/her additional paternity leave. Any work undertaken, including the amount of salary paid for any work done on keeping-in-touch days, is entirely a matter for agreement between the Company and the employee. Any keeping-in-touch days worked do not extend the period of additional paternity leave. Once the keeping-in-touch days have been used up, the employee will lose any further entitlement to statutory paternity pay for any week in which he/she agrees to work for the Company. It may also bring the additional paternity leave period to an end.

Returning to work after additional paternity leave

The employee will have been formally advised in writing by the Company of the end date of his/her additional paternity leave. The employee is expected to return on the next working day after this date, unless he/she notifies the Company otherwise. If he/she is unable to attend work at the end of additional paternity leave due to sickness or injury, the Company's normal arrangements for sickness absence will apply. In any other case, late return without prior authorisation will be treated as unauthorised absence.

If the employee wishes to return to work earlier than the expected return date, he/she must give the Company at least six weeks' notice of his/her date of early return, preferably in writing. If he/she fails to do so, the Company may postpone his/her return to such a date as will give the Company six weeks' notice, provided that this is not later than the expected return date.

If the employee decides not to return to work after additional paternity leave, he/she must give notice of resignation as soon as possible and in accordance with the terms of his/her contract of employment. If the notice period would expire after additional paternity leave has ended, the Company may require the employee to return to work for the remainder of the notice period.

Rights on and after return to work

On resuming work after both ordinary and additional paternity leave (in the latter case where it was an isolated period of leave or taken with certain other types of statutory leave), the employee is entitled to return to the same job as he/she occupied before commencing paternity leave on the same terms and conditions of employment as if he/she had not been absent.

Adoptions from overseas

If an employee has adopted a child from overseas, he/she may still be entitled to additional adoption leave provided again that the primary adopter has returned to work. Special rules apply in these circumstances. For further information, please contact [name].

Law relating to this document

Leading statutory authority

Employment Act 2002
Employment Rights Act 1996
Civil Partnership Act 2004
Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 2005 (SI 2005/2114)
Paternity and Adoption Leave Regulations 2002 (SI 2002/2788)
Social Security Contributions and Benefits Act 1992
Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) Regulations 2002 (SI 2002/2818)
Work and Families Act 2006
Additional Paternity Leave Regulations 2010 (SI 2010/1055)
Additional Statutory Paternity Pay (General) Regulations 2010 (SI 2010/1056)
Additional Statutory Paternity Pay (Weekly Rates) Regulations 2010 (SI 2010/1060)
Additional Statutory Paternity Pay (Birth, Adoption and Adoptions from Overseas) (Administration) Regulations 2010 (SI 2010/154)

There are two types of paternity leave: ordinary and additional.

The right to ordinary and additional paternity leave is available to the biological father of a child or to a person who is married to, the civil partner of, or the partner of, the child's mother. It is also available where a couple jointly adopt a child to the individual who does not take adoption leave and to the spouse, civil partner of, or partner of, a child's adopter. The definition of "partner" includes same-sex partners. To qualify for paternity leave, the employee must have, or expect to have, responsibility for the child's upbringing and be taking the leave to care for the child. Thus paternity leave is not available to biological fathers who are not likely to have parental responsibility for their child.

The entitlement to ordinary paternity leave is to take one or two weeks' paternity leave in a single block within eight weeks of the child's birth or adoption, or of the first day of the employee's partner's expected week of childbirth, if the baby is born prematurely.

The right to additional paternity leave is available to parents of children due on or after 3 April 2011, or adoptive parents who are notified of having been matched with the child on or after 3 April 2011. The provisions enable eligible employees to take up to 26 weeks’ additional paternity leave within the first year of their child’s life or the first year after the child’s placement for adoption, provided always that the mother or the primary adopter has returned to work. In normal circumstances, additional paternity leave is available during the second six months of the child’s life or adoption placement, as the first six months are preserved for the mother/primary adopter to take maternity/adoption leave. The earliest that additional paternity leave may commence is 20 weeks after the date on which the child is born, or 20 weeks after the date of placement of the child for adoption, and it must end no later than 12 months after that date. Additional paternity leave must be taken as one continuous period in multiples of complete weeks and the minimum period is two consecutive weeks and the maximum period is 26 weeks. Special rules apply in the event of the mother’s or the primary adopter’s death.

In order to be eligible for ordinary paternity leave an employee must satisfy the following criteria:

• The employee must be the father of the child or married to, the civil partner of, or the partner of, the child's mother, married to, the civil partner of, or the partner of, the child's adopter, or one of a couple jointly adopting a child, and expect to have responsibility for the upbringing of the child and be taking the leave to care for the child or support the child’s mother/primary adopter.
• The employee must have a minimum of 26 weeks' service, as at the end of the 15^th week before the week in which the child is due to be born is due to be born or, in respect of an adopted child, as at the end of the 15^th week before the week in which the child's adopter was notified of having been matched with the child.
• The employee must give notice of his or her intention to take ordinary paternity leave at least 15 weeks before the baby is due to be born or, in the case of an adopted child, no later than seven days after the date on which notification of the match with the child was given by the adoption agency. Notice, which must be in writing if the employer so requests, must specify the date on which the child is expected to be born or adopted, the intended start date and the length of the intended leave. In the case of an adopted child, the notice should also specify the date on which the adopter was notified of having been matched with the child.
• The employee must, if asked by the employer to do so, produce evidence of entitlement to ordinary paternity leave by signing a self-certification form declaring that he or she meets the statutory eligibility criteria.

In order to be eligible for additional paternity leave an employee must satisfy the following criteria:

• The employee must be the father of the child or married to, the civil partner of, or the partner of, the child's mother, married to, the civil partner of, or the partner of, the child's adopter who has elected to take adoption leave (the "primary adopter"). In addition, in the case of a birth child, the employee must expect to have the main responsibility for the upbringing of the child (apart from the mother’s responsibility). In the case of adoption, he or she must have been matched with the child for adoption. In both cases, he or she must be taking the leave to care for the child.
• The employee must have a minimum of 26 weeks' service, as at the end of the 15^th week before the week in which the child is due to be born or, in respect of an adopted child, as at the end of the 15^th week before the week in which the employee was notified of having been matched with the child.
• The employee must remain in continuous employment with that employer until the week before the first week of additional paternity leave.
• The mother must be entitled to one or more of maternity leave, statutory maternity pay or maternity allowance or, in the case of adoption, the primary adopter must be entitled to one or both of adoption leave or statutory adoption pay, and the mother or primary adopter must have returned to work.
• The employee must give written notice of his or her intention to take additional paternity leave to his or her employer at least eight weeks before the chosen start date.
• Notice, which must be in writing, must specify, in the case of a birth child, the date the child was expected to be born and the actual date of birth or, in the case of an adopted child, the date on which the employee was notified of having been matched with the child and the date of placement for adoption and, in either case, the intended start date and end date of additional paternity leave.
• The employee must also make a written and signed declaration to his or her employer not less than eight weeks before the chosen start date stating that the purpose of the period of leave is to care for the child and that he or she satisfies the relationship eligibility conditions for additional paternity leave.
• Within the same timeframe, the mother or primary adopter must make a written and signed declaration to the employee’s employer stating his or her name, address and national insurance number, the date he or she intends to return to work, that the employee satisfies the relationship eligibility conditions, that he or she consents to the employer processing the information contained in the declaration and, in the case of a birth child, the employee is to his or her knowledge the only person exercising the entitlement to additional paternity leave in respect of the child.

The employee must also, if asked by the employer to do so (such request to be made within 28 days of receipt of the employee’s leave notice), produce a copy of the child’s birth certificate or, in the case of an adopted child, evidence (in the form of documents issued by the adoption agency) of the name and address of the adoption agency, the date on which the employee was notified of having been matched with the child and the date on which the agency expects to place the child for adoption, and, in either case, the name and business address of the mother’s or primary adopter’s employer (or self-employed business address). The employee must supply this information within 28 days.

A mother and father or two adoptive parents cannot take maternity/adoption leave and additional paternity leave at the same time.

A mother or primary adopter is treated as having returned to work where his or her maternity or adoption leave period has ended. If the mother or primary adopter was entitled to statutory maternity pay, maternity allowance or statutory adoption pay, he or she is treated as having returned to work on the date when this is no longer payable. If he or she was eligible for both leave and pay, he or she is treated as having returned to work when both the leave has ended and he or she is no longer eligible for pay.

Once an employee has provided proper notification of his or her intention to take additional paternity leave and pay, the employer must respond in writing within the next 28 days acknowledging the employee's intentions and confirming the relevant start and end dates of additional paternity leave and pay.

If the employee subsequently wishes to change the date on which he or she is starting or ending his or her additional paternity leave (whether the new date is earlier or later than the date originally notified), or wishes to cancel his or her additional paternity leave altogether, he or she must give the employer written notice before the earlier of six weeks before the date cancelled or changed or six weeks before the new date.

Additional paternity leave normally commences on the start date specified in the employee’s leave notice, or in any subsequent notice.

All terms and conditions of the employee's contract, except remuneration, must be continued during ordinary paternity leave. Instead of normal pay, most employees will be entitled to receive ordinary statutory paternity pay during ordinary paternity leave, provided that their average weekly earnings are not lower than the lower earnings limit for national insurance contributions. As of Sunday 4 April 2010, ordinary statutory paternity pay is paid at the standard rate of £124.88 per week, or at 90% of the employee's average earnings, if this figure is lower.

All terms and conditions of the employee's contract, except remuneration, must also be continued during additional paternity leave. Instead of normal pay, the employee will usually be entitled to additional statutory paternity pay during some of the additional paternity leave period, ie if taken during what would have been the mother’s or primary adopter’s maternity or adoption pay period. The remaining period of additional paternity leave will be unpaid.

In order to be eligible for additional statutory paternity pay an employee must satisfy the following criteria:

• The employee must be the father of the child or married to, the civil partner of, or the partner of, the child's mother, married to, the civil partner of, or the partner of, the child's primary adopter, and, in the case of a birth child, expect to have the main responsibility for the upbringing of the child (apart from the mother’s responsibility) or, in the case of adoption, have been matched with the child for adoption, and in either case intend to care for the child during the additional statutory paternity pay period.
• The employee must have a minimum of 26 weeks' service, as at the end of the 15^th week before the week in which the child due to be born, or in respect of an adopted child, as at the end of the 15^th week before the week in which the employee was notified of having been matched with the child (the "relevant week").
• The employee must remain in continuous employment with that employer until the week before the additional statutory paternity pay period begins.
• The employee’s average weekly earnings for the period of eight weeks ending with the relevant week must not be lower than the lower earnings limit for national insurance contributions.
• The mother must be entitled to statutory maternity pay or maternity allowance or, in the case of adoption, the primary adopter must be entitled to statutory adoption pay, and the mother or primary adopter must have returned to work before his or her full entitlement to statutory maternity pay, maternity allowance or statutory adoption pay has been exhausted. A mother or primary adopter is treated as having returned to work where his or her maternity or adoption pay period has ended.
• The mother or primary adopter must have at least two weeks of his or her maternity or adoption pay period which remains unexpired.
• The employee must give written notice of his or her application for additional statutory paternity pay at least eight weeks before the expected additional statutory paternity pay start date.
• Notice, which must be in writing, must specify, in the case of a birth child, the date the child was expected to be born and the actual date of birth or, in the case of an adopted child, the date on which the employee was notified of having been matched with the child and the date of placement for adoption and, in either case, the expected start date and end date of additional statutory paternity pay.
• The employee must also make a written and signed declaration to his or her employer not less than eight weeks before the expected statutory paternity pay start date stating the above information in the notice is correct, he or she intends to care for the child during the additional statutory paternity pay period and he or she satisfies the relationship eligibility conditions for additional statutory paternity pay.
• Within the same timeframe, the mother or primary adopter must also make a written and signed declaration to the employee’s employer stating his or her name, address and national insurance number, that he or she has given notice to his or her employer that he or she is returning to work, he or she is entitled to statutory maternity pay, maternity allowance or statutory adoption pay, the start date of his or her maternity or adoption pay period, the date on which he or she intends to return to work, that the employee is to his or her knowledge the sole applicant for additional statutory paternity pay and he or she consents to the employer processing the information contained in the declaration.

As of Sunday 4 April 2010, additional statutory paternity pay is paid at the standard rate of £124.88 per week, or at 90% of the employee's average earnings, if this figure is lower.

An employee on additional paternity leave is able to agree with his or her employer that he or she will work for up to 10 days during additional paternity leave without that work bringing his or her paternity leave and pay to an end. The employer can also make reasonable contact with an employee who is on additional paternity leave to help plan his or her return to work.

If an employee wants to return to work early from additional paternity leave, he or she must give the employer at least six weeks' notice of the date of early return. If he or she fails to do so, the employer may postpone his or her return to such a date as will give the employer six weeks' notice, provided that this is not later than the end of additional paternity leave.

Special rules apply where additional paternity leave follows adoption leave in relation to a child adopted from overseas.

Relevant case law

Atkins v Coyle Personnel plc [2008] IRLR 420 EAT. The Employment Appeal Tribunal held that, for an employee to claim successfully that his dismissal was related to the fact that he had taken paternity leave, there must be a causal link between the dismissal and the leave.

Notes

The employer is able to recover from the Government 92% of the total of statutory paternity pay paid out to an employee, or 104.5% of statutory paternity pay if the employer is a small business (defined as paying £45,000 or less in national insurance contributions).

On returning to work after both ordinary and additional paternity leave (in the latter case where it was an isolated period of leave or taken with certain other types of statutory leave), the employee is entitled to return to the same job as he or she occupied immediately before commencing paternity leave on the same terms and conditions of employment as if he or she had not been absent, with seniority and pension rights retained.

An employee is entitled not to be subjected to a detriment for reasons related to taking, or seeking to take, paternity leave and it is automatically unfair to dismiss an employee for such a reason.

Warning

A failure to grant an eligible employee paternity leave or pay statutory paternity pay will give the employee the right to bring proceedings in an employment tribunal.

Future developments

The standard rate of statutory paternity pay increases from £124.88 to £128.73 per week from 3 April 2011.

The coalition Government is to review "shared parental leave" to see how family-friendly rights can be made more flexible. For example, the proposals will look at how both parents might be able to take leave at the same time, instead of the mother having to have returned to work before the father can take additional paternity leave. It is expected that the new system will be introduced in 2015.

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Extract from XpertHR

Paternity rights: (07) Letter responding to an employee who has notified an intention to take additional paternity leave (employees whose child has an expected week of birth beginning on or after 3 April 2011) (letter)

When to use this model paternity leave letter

Use this model letter to respond to an employee who has notified you of his or her intention to take additional paternity leave.

Letter wording 

Dear [ ]

Thank you for advising us that you intend to take additional paternity leave commencing on [date] and ending on [date]. We confirm that you are eligible to take additional paternity leave as requested.

During your period of additional paternity leave, all the terms of your contract of employment, except your [salary/wages], will continue.

Instead of [salary/wages], during some of your additional paternity leave, you will be paid additional statutory paternity pay at the rate set by the Government for the relevant tax year. Your additional statutory paternity pay period will commence on [date] and end on [date]. The remaining period of your additional paternity leave will be unpaid.

[OR

Instead of [salary/wages], during some of your additional paternity leave, you will be paid additional statutory paternity pay at a rate equivalent to 90% of your average weekly earnings ie £[ ] per week. This is the rate payable where 90% of an employee’s average weekly earnings are less than the standard rate of additional statutory paternity pay set by the Government for the relevant tax year. Your additional statutory paternity pay period will commence on [date] and end on [date]. The remaining period of your additional paternity leave will be unpaid.]

[OR

As your [spouse/partner] was not eligible to receive [statutory maternity pay/maternity allowance] during his/her maternity leave, you will not be eligible to receive additional statutory paternity pay during your additional paternity leave.]

[OR

As your average weekly earnings are below the current lower earnings limit for national insurance contributions, you will not be eligible to receive additional statutory paternity pay during your additional paternity leave.]

If you subsequently wish to change the date on which you intend to start your additional paternity leave (or you wish to cancel your additional paternity leave altogether), you must notify [name] no later than six weeks before your intended revised start date or six weeks before [original proposed start date], whichever is sooner or, if that is not reasonably practicable, as soon as it is reasonably practicable for you to do so. Please contact [name] if you wish to discuss this further.

Given the date that you have chosen to end your additional paternity leave, the latest date on which you may return to work is [date], which is the next working day after your additional paternity leave ends. If you wish to return to work before this date, you must give us at least six weeks' notice of the date on which you wish to return. If you do not give this notice, or give insufficient notice, the Company will have the right to postpone your return date for a number of days equivalent to the unexpired portion of the six-week notice period, or until the end of your additional paternity leave period if that occurs earlier.

You are eligible to work for the Company for up to 10 days (known as "keeping-in-touch" days) during your additional paternity leave without bringing your additional paternity leave to an end and without loss of a week's additional statutory paternity pay (where it is due in that week). For these purposes, "work" can also include training or any other activity undertaken to assist you in keeping in touch with the workplace, such as attending conferences, appraisals or team meetings.

During your period of additional paternity leave, the Company may contact you about the possibility of working on keeping-in-touch days. You may also write to the Company to request to work on keeping-in-touch days. However, you are under no obligation to agree to attend work and the Company is under no obligation to offer you keeping-in-touch days. It is entirely your decision and you will not be subjected to any form of detriment if you do not wish to agree to work keeping-in-touch days.

In any event, the Company reserves the right to maintain reasonable contact with you from time to time during your additional paternity leave. This may be to discuss your plans for return to work, to discuss any special arrangements to be made or training to be given to ease your return to work or simply to update you on developments at work in your absence.

Finally, we would remind you that if you decide that you do not wish to return to work at the end of your additional paternity leave, you must still give us proper notice of termination of your employment in accordance with your contract of employment.

If you have any questions about any aspect of your additional paternity leave entitlement, please do not hesitate to speak to [name].

Yours sincerely

[ ]

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By David Whincup 02 March 2011

Extract from PersonnelToday.com

I've just finished interviewing for a senior sales position in my technology company, but if the successful applicant doesn't work out, I don't want him stealing my customers or competing with my business. What sort of provisions can I put in the contract, and can I do the same for all my other employees?

The traditional test of the enforceability of a restrictive covenant is that it should be no wider than the minimum reasonably required to protect your legitimate business interests. That does not cover the stamping out of competition, however tempting - it simply protects against the unfair use of confidential information or client or staff contacts and influence gained on your time and at your expense. The starting point for the drafting of any restrictive covenant is, therefore, to determine the risk to the business posed by the employee should he depart. Does his position really grant him an iron grip on your clients or a Pied Piper-like attraction for your staff, or is that just what he tells you at pay review time?

The question is an issue both of role and seniority: the more senior and outward-facing he is, the greater your employee's possible degree of influence over your staff and clients, so the longer any non-solicitation provision could last. He will obviously invest a considerable quantity of his time (and your money) in building up client relationships, so a suitable non-solicitation clause should certainly be enforceable. To determine its length, you will need to look at the regularity and nature of his contact with his clients - if he sees them only periodically, then a longer period of restraint may be appropriate before they are effectively weaned away from him.

On the other hand, if your clients need your goods and services on a very regular basis, it would not take very long before any replacement you tried to insert into the relationship had either succeeded or demonstrably failed and your restraint would have to reflect that. Remember that there are no points for a near miss here, so it is far better to have a restraint which is narrower than you would ideally like but appears enforceable, than one which is clearly too wide and can safely be laughed at by both your employee and his new employer. Don't just use the same template covenant as for the finance manager and the chap who empties the bins.

Sometimes you see wording in contracts to the effect that if the court believes the covenant to be too wide, it should redraft it so as to make it enforceable. The courts do have a little-used power to "blue-pencil" (ie delete) parts they consider too wide, but they cannot otherwise amend them. This wording will therefore not save a restrictive covenant which is too wide. It is best to have the employee's line management make the final call on the length and breadth of the restrictions required to protect the business - often this task is dropped on HR without their having the operational or technical knowledge to judge that risk adequately. Putting line management in the cross-hairs at the outset of the contract will make them focus on the question now rather than rely on the traditional route of blaming you later.

By far your most effective weapon against your departing employee is actually not a restrictive covenant at all but a garden leave clause coupled with a reasonable notice period. By that combination you can keep your employee out of the competition for the duration of his notice period and (because he remains employed by you over that time) subject to much stricter obligations to you of good faith and exclusive service than can be imposed after his employment ends.

Remember at the same time that however tight and brilliant your post-employment restraint drafting, it will be invalidated at a stroke if you are guilty of a breach of your employee's contract, whether in constructively dismissing him or paying him in lieu of notice (whoever gave it) without the contractual right to do so.

David Whincup, partner, Squire Sanders Hammonds, London

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Fiona Morrison 02 March 2011

Extract from PeopleManagement.co.uk

Why employees moaning down the pub is not the same as making damaging comments on social networking sites about an organisation’s perceived shortcomings

It seems inevitable that social media-related problems at work, such as those involving civil servant “tweeter” Sarah Baskerville, are set to become more frequent given the ever-changing nature of internet technology, and its increasing influence on how people communicate.

The Press Complaints Commission recently ruled that the Daily Mail’s public shaming of Baskerville did not constitute an invasion of privacy, given her position and the political nature of some of her statements. The newspaper article noted her scathing references to the government’s deficit reduction programme in her “tweets”, and highlighted that it viewed as inappropriate comments about coming to work with a hangover when made by a civil servant. She had listed her occupation at the Department of Transport on her Twitter page.

Baskerville’s contention was that only her 700 or so followers would be able to read her comments without searching for them. However, the unrestricted status of her account – and the potential for her comments to be re-tweeted by her followers to many other users –led the PCC to reject her complaint. She has unfortunately learned the hard way that it isn’t always appropriate to reveal your innermost thoughts for the world to read, personal views or not. Other social media users should take heed of her experience, and consider that perhaps life as an author may not sit easily alongside their chosen career path.

This story may be a sign of the times, but the crux of the issue isn’t new. Most employers appreciate that disgruntled employees will have a moan to their friends or family about work-related matters from time to time.

But posting such thoughts on a social media site differs from having a whinge in the pub. A permanent record of the comment is created, the number of people to whom the comment is made is significantly greater, their identity is essentially unknown, and there is no control over what they will then do with the information. Whether a basic disclaimer to the effect that “views expressed are my own and not those of my employer” will be effective or not will depend on the severity of the comment, the number of people who can access it, and the perceived damage to the employer’s reputation as a result.

We don’t yet know what approach the employment tribunals will take when handling cases of this nature, but it is only a matter of time before some much-needed guidance is handed down. In particular, it would useful to know whether tribunals will give any weight to the argument that employees have an expectation of privacy. If the tribunals take a similar approach to that taken by the PCC, the answer would appear to be no.

In the meantime, employers should have a clear social media policy which:
• details what employees must and must not do, and explains that the rules extend to all social media activity, irrespective of whether this takes place during working hours or not
• states explicitly that breaches of the policy will result in disciplinary action and could, in serious cases, lead to dismissal
• dovetails with the organisation’s disciplinary and harassment policies, and with existing policies on acceptable use of the internet
• is applied consistently across the business.
It may be necessary to provide training to line managers on what constitutes social media misuse.