When you take time off because your partner is having a baby, or you are adopting a child or having a baby through surrogacy, you may be eligible for one or two weeks of paternity leave and to receive Statutory Paternity Pay (SPP).

A quick and easy way to know if you are eligible for leave and pay is to use the Government calculator.

If you need advice on benefits you might be entitled to (other than Statutory Paternity Pay) during paternity leave please see our page here.

Who can take paternity leave?

To take paternity leave, you must be either the biological father of the child, or be the partner, spouse or civil partner of the birth mother.

You do not have to be male or the father of the baby to take paternity leave. A non-birth parent may be eligible for paternity leave if they are the spouse, civil partner or partner of the child’s birth mother or adopter, and shares, or expects to share, the main responsibility for bringing up the child.

In adoption cases, you must be the partner, spouse or civil partner of the child’s primary adopter. This is usually the person taking adoption leave and pay.

In surrogacy cases, at least one of the parental order parents must be the child’s biological parent, and the other parent must be their partner, spouse or civil partner.

Who is a partner?

Eligibility for paternity leave

You must be an employee to take paternity leave. You cannot be self employed or a worker (such as an agency worker). However, some workers can get Statutory Paternity Pay (SPP), if they are “employed earners” (where someone, for example an agency, pays employer’s national insurance).

In order to be eligible for paternity leave, you must:

• have or expect to have responsibility for the child’s upbringing.
• be the biological father of the child or the mother’s husband, civil partner or partner (see above).
• have worked continuously for your employer for 26 weeks by the end of the 15th week before the expected week of childbirth (‘the qualifying week’).
• still be employed by your employer on the day the child is born.

To work out the qualifying week, take the Sunday before the due date (unless your baby is due on a Sunday, in which case use the due date) and count back 15 weeks. This is the start of the qualifying week, which starts on a Sunday and ends on a Saturday.

As a rough guide, if you have worked for your employer since before the birth mother became pregnant, you will meet the continuous employment test. However, it is useful to know the qualifying week as it affects lots of other rights, including when you give notice.

Paternity leave can be taken by more than one person for the same baby, as the biological father, the birth mother’s spouse/civil partner and the mother’s cohabiting partner could all be eligible.

For the child’s father to be eligible he must expect to have responsibility for the upbringing of the child, but for other partners they must expect to have the “main responsibility” (apart from the mother) for the child’s upbringing. If your employer requests it, you may need to make a declaration that you are eligible.

When can I go on paternity leave?

You can choose to take either one or two consecutive weeks of paternity leave. Leave cannot start before the birth, and it must end within 56 days of the birth (or 56 days of the due date if the baby is early).

Leave can be taken:

• From the date of the baby’s birth, whenever that takes place.
• From a chosen number of weeks after the date of the baby’s birth (whenever it is born).
• Or from a chosen date that falls at any point after the due date, as long as the leave is completed within 56 days of the birth.

You cannot start paternity leave before the birth. If you have given notice and baby is not yet born, you must continue to work and leave will start the day after the baby is born. If you require time off before or during the birth, then you must use some other form of leave like annual leave or time off for dependants.

There is only one period of leave available even if more than one child (e.g., twins) is born. If a baby is stillborn after 24 weeks of pregnancy, or is born alive at any time but then dies, you still have the right to take paternity leave.

Statutory Paternity Pay (SPP)

Most employees who are entitled to paternity leave will also be entitled to statutory paternity pay (SPP). SPP is paid by the employer (who can then reclaim payment from the government).

SPP is paid at a flat rate per week or 90% of average weekly earnings, if this is less. If you are paid weekly, average weekly earnings are based on your earnings in the eight weeks ending with the 15th week before the baby is due. If you are paid monthly, it is usually based on the last two pay dates before the end of the 15th week.

However, if your average weekly earnings in this period are less than the lower earnings limit for National Insurance, you will not qualify for SPP.

Some workers who are not entitled to paternity leave can still be entitled to SPP if they are an “employed earner” and meet the conditions of entitlement to leave other than being an employee. So if you are an agency worker and you have earned on average at least the lower earnings limit for National Insurance in the eight weeks ending with and including the 15th week before the baby is due, you would qualify for SPP

If your employer decides you are not entitled to SPP, they should give you a written decision within 28 days of your notice (see below). If they do not give you a decision, or you think the decision is wrong, you can ask HMRC to make a decision for you. For more information, see our article on what to do if my employer does not give me statutory pay?

If you are not entitled to SPP, you may be able to claim Universal Credit (depending on your household income and circumstances) to cover your period of unpaid leave.

Your employer may offer better paternity leave and pay than the legal minimum described here, so you should always check your contract and employer policies. An employer may not offer less than the legal minimum.

How to give notice

You must give notice for paternity leave and SPP by the end of the 15th week before the baby is due. If you have not given notice on time, give it as soon as possible. Your employer may ask to you to use form SC3, which is provided by the HMRC, or to use the employer’s own version of the form.

Your notice does not have to be on a form, as long as you give all the information required.

For leave you must state:

• When the baby is expected to be born (or the date of birth if the baby has already been born),
• Whether you want to take one or two weeks leave AND
• When you want your leave to start.

For pay you must also state:

• Whether you want to receive one or two weeks’ SPP and when you want your pay to start.
• That you are the baby’s father/mother’s partner and will be responsible for the baby’s upbringing, and that you will care for the child or support the child’s mother whilst getting SPP.

If you are applying for your leave and pay after a baby is born (for example, because the child arrives early, or you did not realise you had to give advance notice), remember that you must also state the actual date of birth. If you have given notice to your employer to take leave from the child’s birth, or from a set number of days after this, then you should let them know when the birth happens.

You can change your mind, but you need to give your employer’s at least 28 days’ notice.