CIPD response to the DTI consultation paper Work and Families: Choice and Flexibility: Additional Paternity Leave and Pay
General
In the Work and Families Bill the DTI takes powers to introduce a new entitlement to Additional Paternity Leave (APL) and Additional Statutory Paternity Pay, the detail of which is to be set out in regulations. The Bill provides for an employed father or partner of a mother (or adopter) to be absent from work for a maximum of 26 weeks to care for a child. This leave (known as Additional Paternity Leave) must be taken before the child’s first birthday. This leave is in addition to the two weeks paternity leave entitlement that a father or partner has under existing legislation.
In March 2006 the DTI issued a consultation paper seeking views in particular on:
- eligibility criteria for leave and pay including length of service with an employer;
- the earliest point when additional paternity leave and pay could be taken;
- rights to return and terms and conditions whilst on additional paternity leave; and
- details of how the scheme will operate in practice and administration of the scheme.
The CIPD response to the DTI (below) takes account of views expressed at two focus group meetings of CIPD members, including one organised by Swindon branch, and comments submitted by other branches.
Question 1
What is the minimum length of time a father should have worked for his employer before he can qualify for Additional Paternity Leave?
- Option 1 - Qualified for Ordinary Paternity Leave and continued in employment with the same employer up to the intended date of taking Additional Paternity Leave and Pay – minimum of 60 weeks in normal cases?
or
- Option 2 - One year’s service before the intended date of taking Additional Paternity Leave and Pay?
or
- Option 3 - 26 weeks’ service before the intended date of taking Additional Paternity Leave and Pay?
or
- any other alternative
Presumably the intention of fixing an employment threshold for fathers to quality for APL is to ensure that qualifying fathers have made a commitment to their employer, in which case the same period as is required to qualify for ordinary paternity leave, ie (26 weeks), ought to be enough. However, there would be an anomaly if fathers could qualify for APL despite not having been eligible for OPL because they started with their employer shortly before the birth of the baby. It would be simpler and more appropriate to regard OPL and APL as a single entitlement, with a single six month qualifying period ie the same six months that makes the father eligible for OPL would also qualify him for APL. This would also mirror existing maternity arrangements. The Institute therefore favours option 1.
Question 2
How do you think the weekly rate should be calculated for Additional Statutory Paternity Pay?
There is a strong case for mirroring existing OSMP arrangements and averaging over an 8 week period. There is no obvious case for choosing a single week: this might be an unusual week and if this practice were to be adopted for ASPP it ought presumably to apply to SMP also.
Question 3
What period should be used as the basis for the calculation of average weekly earnings?
- Should the period be linked to the expected week of childbirth (as used for Ordinary Statutory Paternity Pay)?
or
- Should the period be linked to the date the father intends to start his Additional Paternity Leave and Pay?
or
- Should the period be linked to the actual date of the child’s birth?
Some members feel that it would be simpler to use the same pay period used for OSPP (ie the first option above), so that the calculation only needed to be done once. If the father’s circumstances changed (ie pay goes either up or down), this could be ignored since numbers are estimated to be very small. However, other members feel (again on grounds of simplicity) that the period used as the basis for calculating average weekly earnings should be linked to the date the father intends to start his APL (ie option 2). Although it would seem more straightforward to use the same pay period as is used for OSPP, it might be fairer to use the more recent period to calculate additional paternity pay in the limited number of cases where this is needed.
Some members queried what rules would apply where the father is on sick leave in the relevant period.
Question 4
What circumstances do you think should constitute a mother returning to work?
The CIPD believes that a mother should be regarded as returning to work on the date when she says she intends to return. This means that maternity leave and pay will end as paternity leave and pay begin.
Intuitively, it might have seemed preferable to link the father’s entitlement to APL to the mother’s actual physical return to the workplace, not least since this might tend to discourage a minority of cases in which the mother postponed her return on grounds of ill health or some other form of leave. But there are strong arguments for predictability so that the employer can be confident of the date when APL will begin and this suggests that the mother’s indicated return date should be accepted as constituting her return to work. There may also be some benefit for the employer if the mother is able to take annual leave before returning to work since this may reduce the need for subsequent cover. The alternative of requiring the mother to have physically returned would not in any case be fool-proof in discouraging possible abuse since a mother might turn up for a day or two and subsequently go absent from the workplace.
Question 5
Do you agree that setting the earliest point at which Additional Paternity Leave and Pay can be taken at 20 weeks from the date of birth of the child or in the case of adoption, 20 weeks from the date on which the child was placed for adoption, is the most appropriate way of reserving the period after the child’s birth for the mother?
The proposal that the earliest point at which the father can start APLP should be 20 weeks from the date of birth is acceptable. We recognise the presentational advantages in allowing fathers to take up to 26 weeks of paid leave, where the mother is content to take a similar period of maternity leave. Some members would, however, prefer much more flexibility for the parents, suggesting that the father should be able to begin APL any time after the 2 weeks following the birth. Other members pointed out that, if the mother wished to return to work after say 12 weeks, this could pose problems with childcare in the period before the father could start APL, though this might be alleviated if one or the other was able to take leave.
Question 6
Do you agree the rules should allow for the possibility of a gap between the end of maternity or adoption leave and the beginning of Additional Paternity Leave and Pay?
Question 7
Are there any circumstances where you think a gap in (i) leave, or (ii) pay should not be allowed?
It is unclear how frequently or in what circumstances parents might wish there to be a gap between the end of maternity or adoption leave and the beginning of APL. Some members feel that maternity and paternity leave should in effect be “seamless”: Allowing a gap between the ending of maternity leave and the start of APL opens up questions about how big a gap might be allowable and what impact this might have on both the mother’s and the father’s employers’ ability to manage their absences. However, the Institute believes that in the interest of maximising parental choice it should be possible for there to be a gap between the mother returning to work, ie ending maternity leave, and the father taking up his entitlement and starting APL. This is on the understanding that APL would need to be taken in its entirety within the 12 months following the birth of the child, so that fathers’ absence continues to be clearly linked to the need for childcare in that period.
Question 8
Should all the situations outlined above in relation to the situation where a mother dies be included in the regulations?
This whole area is one that will cause difficulties not only for fathers but for the employer and it is impossible for legislation to anticipate the whole range of situations whereby fathers and children could be placed in difficulties by the death or incapacity of the mother. What if the mother does not die but is chronically unwell, or incapable of caring for or abandons her child, where the social or humanitarian arguments might appear to be equally as strong in some cases?
It seems wholly undesirable to regard entitlement to paternity leave and/or pay as a suitable method of dealing with the wide range of cases that may arise. In particular it seems wrong to apply an entitlement to APL in a situation where the mother did not qualify for maternity pay, and may not even have been employed. Whatever the Government’s intention, there will be pressure for APL to be available – and paid – in circumstances where the mother is incapable of providing continuing care for the child, and for a longer period than the 12 months following the birth of the child. In such situations, it should be a matter for the father’s employer to consider how best to help.
Where a mother dies while on maternity leave, there is a strong case for the father to be able to start APL, even though this may be earlier than the earliest usual starting point (20 weeks after the birth). Allowing the father to continue on APL for longer than the 26 weeks normal maximum could also be justified on compassionate grounds. But the Institute believes the Government needs a convincing rationale for any significant further extension to the basic APL where the mother dies while on maternity leave. The principles of social security should not be imported into employment legislation, making a convenience of the employer and having no labour market rationale.
Question 9
Do you agree with the principle that the number of Keeping In Touch days for a father on Additional Paternity Leave should be the same as those for a woman taking maternity leave and pay?
Members feel that in principle the father should be entitled to a broadly proportional or “pro-rata” number of Keeping In Touch days since the desirability of the parent attending the workplace while on maternity/paternity leave is will depend at least partly on the duration of absence. However, there will clearly be a limit to the feasibility of achieving absolute fairness as between mother and father, not least if the number of Keeping In Touch days for the mother is fixed and does not depend on the duration of maternity leave. If the number of Keeping In Touch days for the mother is five days or fewer, the same figure should apply to the father. In any case the number is not an entitlement but a maximum and fairness needs to b balanced by practicality.
Question 10
Should a father taking Additional Paternity Leave and Pay be entitled to the benefit of his terms and conditions to the same extent as a mother who is on Ordinary Maternity Leave, or as a mother who is on Additional Maternity Leave?
It seems fair that the father should be entitled during APL to the same protection in relation to his terms and conditions as the mother in the first six months of maternity leave including eg contractual holiday pay. It would appear to be discriminatory if fathers on APL were required to sacrifice benefits such as the use of mobile phones or cars when mothers taking a similar period of maternity leave retained them. In addition to the issue of fairness, it seems clear that many fathers might be discouraged from considering APL if their terms and conditions were restricted to those of mothers on additional maternity leave.
Question 11
Should a father taking Additional Paternity Leave and Pay be entitled to the same right of return as a mother returning after Ordinary Maternity Leave, or a mother returning after Additional Maternity Leave?
The same arguments apply as in relation to terms and conditions (Question 10), ie the father should be entitled to the same right to return as a mother returning after OML.
Question 12
Should all the information required for administration purposes be provided before the eight-week notification point?
CIPD members are concerned that in practice eight weeks may not always be long enough for the completion of the processes required to establish entitlement to APL. We recognise, however, that a longer period of notice cannot be achieved since the mother is not required to give more than eight weeks notice of her return to work. We feel this makes it imperative that the mother and father to get together beforehand and take their full share of responsibility for seeing that the necessary processes are completed on time.
We also believe that some form of “critical path” needs to be spelt out in either the regulations or guidance, since it may be impractical for the whole of the supporting evidence to be made available to the father’s employer at the same time as the father’s employer is notified of the intention to take up APL; in which case the arrangements suggested in paragraph 5.12 seem not unreasonable ie
- father’s notification and baby’s birth certificate to arrive with his employer by 8 weeks before start date of APL
- mother’s supporting evidence (statement of entitlement to SMP, plus details of when mother intends to return to work, both certified by her employer) to reach father’s employer by second time limit (4 or 6 weeks before start date?).
Question 13
Should the same sanctions apply to a father wishing to take Additional Paternity Leave and Pay as current paternity arrangements? – i.e. if the supporting evidence does not arrive on time the father’s employer could refuse to pay Additional Statutory Paternity Pay and refuse to grant Additional Paternity Leave.
The same sanctions should apply to a father wishing to take APL as current arrangements for OPL ie if the supporting evidence does not arrive on-time the father’s employer could refuse to pay ASPP or grant APL.
Question 14
If a mother’s employer is required to check and certify a statement completed by the mother or to provide information, should any sanctions be in place if they do not comply? If yes, what should these sanctions be?
If the mother’s employer fails to do what is required, the employer should face a financial penalty. There should also be provision for alternative means of supporting the mother’s information (eg by HMRC), with heavier penalties for non-compliance by the employer. Any cases of suspected fraud on the part of the mother or father should be treated as a disciplinary issue.
Question 15
In what format should the father’s notification and the information about the mother’s pay entitlement etc be presented to the father’s employer?
The existing form by which a father can be asked by his employer to confirm his entitlement to paternity leave (SC3) should be adapted to include the necessary additional information and its completion should be mandatory.
Question 16
How should the information be routed from the mother’s employer to the father’s employer in a way that recognises employers’ burdens and potential for abuse?
The mother should have the information about her pay entitlement etc certified by her employer, and she should then be responsible for giving it to the father to pass on to his employer (ie option 2 in para 5.16 of the consultation paper). This would help protect the mother in situations where she might not want her employer to know who the father’s employer is. Option 2 also places as much responsibility as possible for ensuring completion of the process onto the parents, who have a clear incentive to keep the process moving and will wish to know what stage matters have reached. Members see no case for routeing information to the father’s employer via HMRC, with whom the parents will have no direct relationship.
Question 17
Is there a case for it to be mandatory for a father or partner to provide evidence to his employer of the baby or child, prior to Additional Paternity Leave and Pay being taken?
It should be mandatory for the father or partner to provide evidence such as a birth certificate to the employer, so as to limit the scope for abuse.
Question 18
What conditions should apply for fathers wanting to change their Additional Paternity Leave and Pay dates, either in moving them backwards or forwards?
The same conditions should apply to changes in APL and ASPP dates as currently apply to maternity leave and pay ie 28 days notice.