If you’re planning to take time off work following the birth of your child or following adoption, you may be entitled to claim statutory paternity pay (SPP).
What is statutory paternity pay?
Statutory paternity pay is the money certain workers are entitled to after the birth of their child or adoption of a child to cover the time spent off work caring for the baby.
Statutory paternity pay (SPP) is separate to paternity leave. While paternity leave is only available to employees, SPP can be claimed by different types of workers including those who are self-employed and freelancers.
Paternity leave is a period of either one or two consecutive weeks that fathers or partners can take off from work to care for their baby or child. If you take paternity leave, you may also be entitled to either statutory paternity pay.
How much is statutory paternity pay?
SPP rates typically change each year. The weekly rate for statutory paternity pay is the lower of either 90% of your average weekly earnings, or £156.66 a week (SPP rate until 1 April 2023) or £172.48 (SPP rate from 2 April 2023).
Some employers offer their employees enhanced paternity pay as an employee benefit. The rates for enhanced paternity pay are set by the employer within the employment contract terms but these should be more generous than the SPP rate. Employers cannot set their contractual paternity pay rate lower than the applicable statutory rate.
How is statutory paternity pay paid?
SPP is paid in the same way as your wages are usually paid. Tax and National Insurance will also be deducted in the usual way.
Are you eligible for statutory paternity pay?
To be eligible for statutory paternity pay, you must be taking time off work as either the father of the newborn child (including surrogate birth); as the adopter of the child; or as the husband or partner (including same-sex partner) of the child’s mother or adopter.
In addition, you must also meet the following requirements for SPP:
- You earn at least £123 per week before tax.
- You continue to be employed by your employer up until the birth of the child.
- You have been employed by your employer continuously for a minimum of 26 weeks up to any date in the ‘qualifying week’.
- You have given notice in the correct way.
Correct notice means informing your employer of the date the child is due to arrive, how long you will be on leave and when you will take the leave. This needs to be given prior to the qualifying week.
The qualifying week varies depending on your circumstances, and would be either:
- The 15thweek before the birth of a child
- The end of 7 days following your match with a child for UK adoption, or
- The date the child comes into the UK or when you want your pay to start for overseas adoption
How to claim statutory paternity pay
To make a claim for paternity pay, you will be required to complete and submit the relevant form before the relevant qualifying week ie. at least 15 weeks before the child is born, or within 28 days before you want your pay to begin if adopting.
The form you need to complete will be determined by your circumstances. Birth fathers should complete the government’s online form (formerly known as the SC3) or use their employer’s paternity form if available and submit this to their employer.
As a minimum, you need to notify your employer of the baby’s due date, the date you want your paternity leave to start and if you intend to take one or two weeks’ leave. The law does not require you to provide evidence to your employer of the pregnancy or birth.
Adoptive parents use form SC4 for UK adoptions, and SC5 for overseas adoptions, while parents with a surrogacy arrangement also use form SC4.
If you are adopting a child, you must also provide your employer with proof of at least 28 days before you want to start receiving paternity pay. This can be either a letter from the adoption agency or the official matching certificate.
Where you are part of a surrogate arrangement, your employer may ask for a statement confirming you will apply for a parental order in the 6 months following the birth of the child, which must be signed in the presence of a legal professional.
When does statutory paternity pay start?
Statutory paternity pay usually starts at the same time as paternity leave.
Employer’s SPP obligations
Provided you meet the eligibility criteria, your employer will have to pay you the minimum legal amount for the duration of your leave. For example, even if your employer stops trading or you are made redundant, they may still liable to pay you Statutory Paternity Pay.
The circumstances in which your employer will be exempt from paying you are limited, and could include instances where:
- You are in prison or taken into legal custody
- You start a job with a new employer during that period
- Your earnings were too low
- You have not been employed for long enough.
Your employer has the discretion to pay you statutory paternity pay even where you don’t tell them you intend to take paternity leave or do not provide the evidence required in time. They may be able to delay your paternity pay period if you do not provide them with a good reason for the delay.
If you are not eligible or no longer entitled to SPP, your employer must inform you of this and provide you with an explanation using Form SPP1 (Non-payment of Statutory Paternity Pay Explanation) within 28 days.
Your employer can refuse to pay you statutory paternity pay if you get sick and are entitled to statutory sick pay, as you cannot receive both at the same time. Your employer must provide this explanation to you using Form SPP1 within 28 days.
If you decide to leave your job before the baby is born, you will not be entitled to statutory paternity pay. However, if you decide to leave your job after the baby is born, you will still be entitled to receive SPP. You cannot be employed by another employer during that time.
Employer breaching SPP rules?
Your employer is legally obligated to pay statutory paternity pay where you are entitled and are not exempt due to certain circumstances. They are also legally obliged to follow the correct procedure if you are not eligible.
If your employer doesn’t follow these rules, they are breaking the law. Therefore if you feel that your employer isn’t paying you what you are entitled to, or has not followed the rules relating for example to informing you of non-eligibility, take legal advice from an employment law specialist who can help you to understand your rights.
If it is found that your employer has not complied with their duties by refusing or failing pay SPP, they may be issued a penalty of up to £3,000 by HM Revenue and Customs, and you may also be eligible to complain to an employment tribunal.
Employment law can be complex, particularly where disputes arise. Speaking to an expert employment law solicitor will help you to understand your legal position and can help advise you of the next steps should a dispute arise between you and your employer.
Statutory paternity pay FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute tax, financial or legal advice, nor is it a complete or authoritative statement of the rules and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert tax, financial, legal or other advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
