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Paternity leave regulations explained

The Additional Paternity Leave Regulations apply to parents of children due, or matched for adoption, on or after 3 April 2011. From that date fathers, as well as spouses and civil partners of new mothers or adopters, will have the option to play a greater role in the first year of their new child's life. The regulations give them the right to 26 weeks of additional paternity leave (APL) in addition to the two weeks ordinary paternity leave currently available.

This may be good news for new families – but the regulations are likely to create some tricky issues for employers to deal with. One question that is being asked frequently is whether an employer will have to offer enhanced paternity pay to a man taking APL, when that employer already offers enhanced pay to a woman on maternity leave. Failure to do so could arguably be discriminatory on grounds of sex.

Success in such claims will depend on making a valid comparison. Since APL can be taken by employees of either sex, the correct comparator for a man taking APL is a woman taking APL as the same sex partner of a birth mother. Since she would also not be entitled to receive enhanced pay, any claim from a man may be defendable. This is certainly the view taken by the previous government, which stated in January 2010 that "we do not believe there is any requirement for employers to offer terms [during APL] above statutory requirements".

However, in a recent referral to the European Court of Justice, the advocate general concluded that a provision of Spanish law, which allowed mothers to take time off work in the first nine months of the child’s life and which had the aim of easing the burden of childcare, was discriminatory. Childcare responsibilities were distinguished from childbirth and were protecting the biological condition of new mothers. The aim of the provision could have been achieved in a way that was not discriminatory by allowing the father to take time off during the first nine months of the child’s life. The European Court may follow the advocate general’s opinion when it delivers its decision in this case later this year. If it does, offering enhanced terms relating to childcare (and not to pregnancy or childbirth) only to a mother may be open to challenge by a man not offered the same terms during APL.

Handling those on APL during a redundancy exercise may also prove tricky. The regulations mirror rights available to women on maternity leave by providing that those at risk of redundancy while on APL are entitled to be offered any suitable vacant position. This appears to effectively allow someone on APL first pick of the suitable vacancies in a redundancy situation. Clearly this could create problems for employers who are faced with two people with competing rights (a woman on maternity leave and someone on APL) and one suitable vacancy.

There is sure to be a lot of debate about these and other issues over the coming months – such as how to deal with other benefits, including bonuses. In the longer term, case law may help to provide some answers.

Lynne Marr (pictured) is partner at law firm Brodies. Ben Hann is a trainee solicitor at the firm.