Your employee's leave, pay and holiday rights
An employee may have the right to paternity leave and pay if either of the following apply:
- they're the biological father of the child
- their partner is having a baby, adopting a child or having a child through surrogacy – this includes same-sex partners
More than one person might ask for paternity leave for the same baby. For example, a baby's stepfather and biological father may both ask for paternity leave, if they'll both provide significant care for the child.
It's a good idea for your organisation to have a paternity policy that all staff can easily access, for example on an intranet or in a handbook, so that everyone knows their rights.
To be eligible for paternity leave when having a baby, including through surrogacy, someone must:
- be legally classed as an employee
- have worked for the same employer for at least 26 weeks ending with the 15th week before their baby is due
By law, the employee can choose to take either 1 or 2 weeks' paternity leave. They must take the leave all in one go.
Some organisations offer more paternity leave. Check the employment contract if you're not sure.
By law you must not treat an employee unfairly for taking, or planning to take, paternity leave.
Choosing when the employee can start paternity leave
The employee can choose to start paternity leave on either:
- the date their baby is born
- an agreed date within 8 weeks after their baby is born or is expected to be born
They must take all their paternity leave within 8 weeks (56 days) of the birth.
Because the baby could arrive early or late, you should:
- be flexible about when they start their leave
- make appropriate arrangements for their absence, such as arranging paternity cover
They cannot start paternity leave before the birth, but they could take another type of leave, depending on their employment contract and if you agree. For example, they could take holiday.
Changing when they start paternity leave
If the employee wants to change the date they start paternity leave, they must usually give their employer 28 days' notice. This does not have to be in writing unless you request it.
In some circumstances it may not be possible for the employee to give you 28 days' notice of the change, for example if the baby arrives early or late.
If the baby arrives early
If the baby arrives early:
- your employee or someone close to them should tell you about the birth as soon as possible
- your employee must tell you as soon as possible the new date they want to start their paternity leave
There might be circumstances where your employee wants to start their leave later. So it's a good idea to be flexible about the start date.
If the baby's arrival is unexpected or traumatic you might be told about it from someone other than the employee, such as a family member. Some organisations have a policy about who must provide this information, and when. But even if your organisation has a policy about who should contact you, it's a good idea to be flexible and understanding in these circumstances.
If the baby arrives late
If the baby arrives late, your employee must tell you of the new date they're starting their paternity leave as soon as they can. This does not have to be in writing unless you request it.
If your employee wants to take time off before the birth, they could take another type of leave. For example, they could take holiday. Both you and the employee would need to agree this.
The employee might have the right to paternity pay.
If they're adopting:
- one partner might be eligible for adoption leave
- the other partner might be eligible for paternity leave
To be eligible for paternity leave when adopting a child, someone must be legally classed as an employee.
They must also have worked for the same employer for at least 26 weeks before the end of the week when:
- they are told they've been matched with a child, for adoption in the UK
- the child enters the UK, for overseas adoption
Paternity leave can start on one of these dates:
- the date of the adoption placement
- an agreed date within 8 weeks after the placement of the child
- for overseas adoptions, the date the child arrives in the UK or an agreed number of days after
The employee must take all their paternity leave within 8 weeks (56 days) of the birth.
If they're using surrogacy, paternity leave starts on the day of the birth or the day after. They do not have to provide proof they're using surrogacy unless you ask for it.
Shared Parental Leave
An employee could choose to take Shared Parental Leave (SPL), if they're eligible.
If they choose to take SPL, it must be taken after paternity leave.
During paternity leave, the employee will build up ('accrue') paid holiday including bank holidays. Paid holiday is also known as statutory annual leave.
Holiday leave and paternity leave cannot be taken at the same time.
It's a good idea to:
- discuss with your employee whether they'll take their holiday leave before or after their paternity leave
- keep an up-to-date note or other record of what's agreed
If there's a stillbirth or the baby dies soon after birth
The employee still has their paternity rights if:
- the baby is stillborn after 24 weeks of pregnancy
- the baby dies soon after birth
If the employee is eligible for parental bereavement leave and pay, they have the right to take this after they finish their paternity leave.
You should be as understanding and supportive as possible in these circumstances.
While the legal name for the time off is 'statutory paternity leave', some employees might not want to call the time off 'paternity leave' if their baby has died. You should be sensitive to the employee's preference and be led by them when having conversations about leave.
If you need to discuss work-related matters with the employee, you could arrange with someone else (such as their friend or family member):
- when this communication happens
- how it happens, for example whether any urgent communication can be emailed to a friend or family member
To support your employee, you could also offer more time off or a phased return to work.
If there's a miscarriage
If the employee's partner has a miscarriage in the first 24 weeks of pregnancy, there's no entitlement to paternity leave.
However, many people would still consider miscarriage a bereavement. You should still consider offering time off at what can be an extremely difficult time, both physically and emotionally.