Post-birth leave

Most people are familiar with the concept, if not the details, of maternity leave and pay, yet the right of some employees to take paternity leave and pay may come as more of a surprise.

Paternity leave and pay are available to employees of either sex who are the partner of a woman who has given birth, or the partner of someone who is adopting the child provided that they are expecting to play a part in the child's upbringing.

It consists of a period of up to two weeks' leave - given in addition to annual holiday entitlement - to be completed by the first 56 days after the birth. There is no right for employees to split the time into odd days; they may take a single period only of one or two weeks as they prefer. They must also meet certain criteria: they must have 26 weeks' service at the 15th week before the baby is due; they need to notify you at this point of their intention to take the leave and complete a declaration called an SC3. (There is no requirement to ask them to provide medical evidence of their partner's pregnancy).

The current rate of statutory paternity pay is £123.06 a week: employees normally earning less than this are paid 90% of their usual week's pay. If they earn below the lower earnings limit for National Insurance - currently £95 a week - then they may be entitled to leave but not pay.

It is useful to have a discussion with the employee about when they are planning to take leave: it cannot start until the baby is born (or the child is placed for adoption) but some flexibility on both sides may be needed. Some employees may want to take some holiday as well as, or instead of, paternity leave. This can frequently be the case where their partner is on maternity leave and the additional temporary loss of earnings presents the family with financial difficulties.

Unlike paternity leave, there is no longer any service requirement for maternity leave: all expectant mothers, no matter how short their service with you, may take up to 52 weeks maternity leave. If they have not had 26 weeks continuous service at the 15th week before the week the baby is expected then they will not be entitled to statutory maternity pay.

New employees finding themselves in this position may be able, as an alternative, to claim state maternity allowance based on their National Insurance record, typically with a previous employer. Statutory maternity pay lasts for 39 weeks and is generally payable at 90% of the employee's weekly pay for the first six weeks, followed by the remainder at the standard rate, which is currently £123.06.

It is important to remember that women on maternity leave have continuity of service and keep all the benefits of their employment except for their pay during this period. It is worth checking the employee's contract of employment to understand what this means in any individual case, though the right to accrue holiday is something that will generally affect everyone.

Once again, talking it through with your employee to see if they wish to take holiday at either end of their maternity leave, or discussing how the holiday will be given when they return, can save misunderstandings and inconvenience on both sides. They are also entitled to return to the same job.

After they have been off for 26 weeks, this changes slightly to a right to return to an equivalent role.

Peter Done, managing director, Peninsula