Paternity leave ineligibility letter

Where an employee gives notice of their entitlement to statutory paternity leave but isn’t eligible to take it because they don’t have sufficient continuous employment, you can use our letter to let them know.

Eligibility criteria

The right to paternity leave enables eligible employees to take either a single period of one or two weeks off work or two non-consecutive periods of one week each off work following the birth or adoption of a child for the purpose of caring for the child or supporting the child’s mother or adopter. To qualify, employees must: (1) have or expect to have responsibility (or the main responsibility, other than that of the child’s mother or adopter) for the child’s upbringing; (2) be the biological father or joint adopter of the child, or be the husband, civil partner or partner of the child’s mother or adopter; and (3) have been continuously employed by you for at least 26 weeks ending with the 15th week before the expected week of childbirth or, in respect of an adopted child, ending with the week in which the child’s adopter is notified by the adoption agency of having been matched with the child. In adoption cases, where there are joint adopters, only one can take adoption leave as the primary adopter and the other may then be entitled to paternity leave. Be careful here because if they’ve already exercised the statutory right to take paid time off to attend adoption appointments, that makes them the primary adopter, so they can’t then take paternity leave.

Definition of partner

A partner for these purposes is a person, whether of a different or the same sex, who lives with the mother or adopter and the child in an enduring family relationship but isn’t a relative of the mother or adopter, i.e. they’re not a parent, grandparent, sister, brother, aunt or uncle.

Lack of sufficient service

Whilst an employee is unlikely to give notice of their entitlement to paternity leave where they don’t fulfil the first two qualifying criteria outlined above, they may well still try to give this notice where they don’t have sufficient continuity of employment. You should therefore check the relevant dates if they haven’t been employed with you for long. If it turns out they don’t qualify due to their insufficient service, you can reply to them with our Paternity Leave Ineligibility Letter. It covers both birth and adoption cases as optional paragraphs. If the employee isn’t entitled to paternity leave, they won’t be entitled to statutory paternity pay (SPP) either, so our letter mentions SPP too. Finally, where the employee isn’t eligible for paternity leave, they could still apply to use their paid annual leave entitlement to take time off after the birth or adoption, so our letter refers to that possibility.