Qualifying criteria for statutory ordinary paternity leave
You will qualify for statutory ordinary paternity leave (OPL) on the birth of a baby if you are:
- The biological father of the baby and have, or expect to have, responsibility for the child's upbringing
- Not the child's biological father but are the mother's husband, civil partner or unmarried partner (including same sex partners) and have or expect to have the main responsibility (apart from any responsibility of the mother) for the child. A partner is used here to describe someone who lives with and has a relationship with the mother of the child in what is termed an 'enduring family relationship.'
In addition, you must:
- Have at least 26 weeks' continuous employment (length of service) ending with the 15th week before the expected week of childbirth (EWC) - the qualifying week
- Be working from the qualifying week up to the date of birth. If your contract ends before the birth, you do not qualify for leave unless you go on to work for an associated employer. If your contract ends after the birth, they retain their right to leave (and statutory paternity pay if they qualify)
- Have notified your employer of your intention to take OPL
- Be taking the time off to support the mother and/or care for the baby
You will still be entitled to ordinary paternity leave if you haven't met the above conditions, but the following situations apply:
- The baby is born more than the 14 weeks before the EWC, and you would have been continuously employed for 26 weeks by the end of the 14th week before the EWC, if your employment hadn't been interrupted by your OPL.
This rather complicated exception is designed to allow for the fact that OPL is based on the EWC, rather than the actual birth date, because the actual birth date is impossible to predict with certainty.
Stillborn or short-lived baby
- Your wife or partner gives birth to a stillborn baby after 24 weeks of the pregnancy. If the stillbirth occurs before the end of the 24th week of pregnancy, your employer could allow the employee to take sick or compassionate leave instead.
- If the baby is born alive but then later dies.
Statutory ordinary paternity pay
If you are entitled to OPL, you are normally entitled to statutory ordinary paternity pay. For more information, see our 'Ordinary statutory paternity pay' section.
What is an EWC?
The expected week of childbirth (EWC) is used to calculate your entitlement to paternity leave (see above). The EWC is the week in which the expected date of the baby's birth falls starting with the preceding Sunday and ending the following Saturday.
Employee notification of ordinary paternity leave
You must give your employer the required notice in order to qualify for OPL. This should be provided by you no later than the end of the 15th week before the EWC. If the notice is provided late then it cannot be disregarded by your employer if it was not reasonably practicable for you to notify your employer in time. However, you must still provide your employer with the requisite notice as soon as it is reasonably practicable to do so. If you fail to provide the notice in time and it was reasonably practicable for you to do so then your employer may disregard your notice and it will be left to their discretion whether you are allowed to take ordinary paternity leave.
The notice should provide:
- The EWC
- Confirmation of how much leave you wish to take namely, one or two weeks
- When you want your leave to start
You do not have to give your employer any medical evidence of the pregnancy.
Your employer can request that you provide this notification in writing and that you also provide a written declaration stating that you satisfy the conditions that entitle you to take paternity leave and that you will be taking the time off to support the mother and/or care for the baby.
In addition, you should provide your employer with a further notice as soon as reasonably practicable after the birth of the child, of the date on which the child was born. This can be requested to be in writing.
The start and duration of ordinary paternity leave
Eligible employees can choose to take either one or two whole weeks' ordinary paternity leave. They cannot take it as odd days or as two separate weeks.
The duration of OPL remains the same regardless of the number of children resulting from a single pregnancy.
You cannot start your leave until the birth of the baby. Otherwise, you can choose to start your OPL:
- On the actual date of the baby's birth (whether earlier or later than expected).
- On a date falling on a specified number of days after the actual birth date (whether earlier or later than expected).
- On a date falling after the first day of the EWC. If the baby is born later than this date, then you must delay your leave until the date of the actual birth.
If you specify the date of birth as the day you wish to start your OPL and you are at work on that day, then your leave will begin on the next day.
As long as you have given the required notice, your OPL can start on any day of the week. However, it must finish:
- Within 56 days of the actual birth date
- If the child is born earlier than first day of the EWC, within 56 days from the first day of the EWC
Changing the start date of leave
You can change the start date so long as you give your employer the following notice:
- If you want to change your leave so it starts on the date of birth, at least 28 days before the first day of the EWC
- If you want to change your leave so it starts on a particular date, 28 days before that date
- If you want to change your leave so it starts a specified number of days after the birth, at least 28 days before the date falling the same number of days after the first day of the EWC, e.g. if you want to start leave 14 days after the birth and the EWC begins on 16 July, you must notify your employer of the new date on 2 July, i.e. 28 days before the 14th days after 16 July
Your employer can request you to provide this notification in writing. If it is not reasonably practicable for you to give you this notice in time, then it should be given as soon as it becomes reasonably practicable to do so.
If you have chosen to begin your OPL on a particular date and the child is not born on or before that date then you must vary your choice of start date by substituting it to a later predetermined date or one of the above mentioned options. In these circumstances, you should:
- Discuss the situation with your employee as soon as possible
- Give the appropriate notice to change the start date
Additional paternity leave (APL)
These regulations entitle eligible fathers or partners of mothers to take paternity leave of up to 26 weeks (in addition to the two weeks that they are already entitled to under ordinary paternity leave), during the first year of the child's life.
The right to take APL only applies to babies whose EWC is on or after 3 April 2011.
APL can only be taken once the mother has returned to work and the child is over 20 weeks old.
A number of requirements must be satisfied in order for an employee to qualify to take APL, including that the mother has not taken her full entitlement to maternity leave and that she has, or is about to, return to work. Certain other criteria, such as providing minimum notice periods and a written declaration for employers containing compulsory information, will apply.
APL will no longer be available for employees working in England, Wales and Scotland from 5 April 2015, as it'll be replaced with shared parental leave.