Guidance

Statutory Paternity Pay: employee circumstances that affect payment

What action to take when an employee leaves, becomes sick, dies, or if the child dies. Includes guidance when a child is born early and on paternity pay when adopting.

Employee earnings affected by a backdated pay rise

If your employee gets a backdated pay rise which increases the amount of earnings already paid in the relevant period, you must:

  • recalculate the employee’s Average Weekly Earnings (AWE)
  • pay the extra Statutory Paternity Pay (SPP) due

If your employee wasn’t entitled to SPP, you must recalculate their AWE to check if they may now be entitled and pay any SPP due.

Employee doesn’t qualify for SPP: PAYE Settlement Agreements

You must recalculate your employee’s AWE if all of the following apply:

  • their AWE are less than the Lower Earnings Limit in force at the end of the qualifying or matching week
  • they received any expense payments or benefits in kind in the relevant period
  • the expenses or benefits were included in a PAYE Settlement Agreement

Salary sacrifice

If an employee has entered into a salary sacrifice with you, their AWE is calculated using the amount of earnings actually paid to them during the relevant period. SPP cannot be sacrificed and must be paid in full.

Foster carers

Statutory Paternity Pay (SPP) may be available to foster carers who go on to adopt a child only if they satisfy the qualifying conditions.

Stillbirth

Your employee is entitled to SPP if the baby is stillborn. A stillbirth occurs if the baby is stillborn from the 24th week of pregnancy. The rules are the same as for a live birth.

Premature or early birth

If the baby is born early there are special rules for when your employee has to give you evidence and when you start to pay. Your employee won’t have been able to give you advance notice, but they must tell you the date of birth as soon as possible. They must still tell you when they want to take their paternity leave and SPP and whether they want to take 1 or 2 consecutive weeks. They can choose to take their leave any time between the actual date of birth and the end of an 8 week period running from the Sunday of the week the baby was originally due.

If the baby was born before the employee was due to give you their completed form SC3 - Becoming a parent they should complete this form and give it to you as soon as possible, confirming the date the baby was due and the date of the actual birth. The form also includes a section for declaration of family commitment. This evidence should be accepted as being on time for the earlier start of SPP. If they’d already chosen the start date for their SPP but now need to change this to an earlier date, you should accept that they have given notice on time. You don’t need a birth certificate or evidence of pregnancy.

The SPP period always starts the day after the last day your employee worked before starting their paternity leave. Your employee must tell you when they want to stop work.

Child dies

If the child dies during the SPP period, payment should continue as normal.

Child stops living with the adopter

If the child ceases to live with the adopter during the SPP period, payment should continue as normal.

Child isn’t placed or placed later

Your employee can’t be paid until the child is placed. They must tell you when the child is placed so you know when to start paying them. Don’t start paying on the assumption that the child was placed on the expected date.

More than one child is placed

More than one child may be placed with the adopter under different arrangements. This can happen where 2 or more siblings are adopted from the same family. There is no entitlement to 2 separate periods of SPP and paternity leave if more than one child is placed under the same arrangement.

The employee will only be entitled to a further period of SPP and paternity leave where each child has been placed under separate adoption arrangements. If a separate Matching Certificate (MC) is issued this would be considered as a separate arrangement. If there are separate arrangements, entitlement of up to a further 2 weeks of SPP and paternity leave will commence from the date the second child is placed with the adopter.

Employee dies

If your employee dies during the SPP period, you should pay SPP for the week in which they die, but not for any week in the pay period after that.

Employee leaves job before paternity leave taken

If your employee has left their job, they can’t get paternity leave and if they left:

  • before the date the baby was born, they are not entitled to SPP
  • after the date the baby was born, they may be entitled to SPP

If your employee left after the date of birth, it doesn’t matter why they left or that they’re not coming back - they’re entitled to SPP as long as they don’t start work for a new employer during the SPP period.

If the employment ends after the baby has been born but before the planned start of the SPP period, you may treat the SPP period as beginning on the day after the last day of employment.

Your employee must tell you whether they want 1 or 2 weeks pay. However, your employee may choose when to begin their SPP period between the actual date of birth and the end of an 8 week period running from the day after the baby is born or the day after the Sunday of the week the baby was originally due.

Employee leaves job after being matched with a child

If your employee leaves their job:

  • before the child is placed they can’t get SPP or paternity leave
  • after the child is placed but before the planned start of the SPP period, you may treat the SPP period as beginning on the day after the last day of employment or your employee can choose when to begin their SPP period - between the date the child is placed and the end of an 8 week period running from that date

Your employee should still give you 28 days’ notice of when they want you to start paying them.

Reinstatement after dismissal

If your employee didn’t work for you during the period starting 26 weeks before the Qualifying Week (QW) or Matching Week (MW) and ending when the baby was born or child was placed because you dismissed them, and either:

  • they are then reinstated because an employment tribunal decides that you dismissed them unfairly
  • you reinstate them as a result of a statutory grievance procedure

they are entitled to SPP and paternity leave, as if they had not been dismissed. All the other conditions to entitlement must be satisfied.

Reinstatement after Armed Forces service

If your employee didn’t work for you during the continuous employment period because they were serving in the Armed Forces and they return to work for you within 6 months of the end of their service in the Forces under the Reserve Forces (Safeguard of Employment) Regulations, they may still be able to get SPP.

For SPP they must have been continuously employed by you for 26 weeks up to and including the QW or MW and have continued to work for you until the baby was born or the child was placed. Do not count the period they served in the Armed Forces as part of this period.

A week, in this instance, means Sunday to Saturday. Count part weeks as full weeks.

Break in employment

For SPP the employee must have been continuously employed by you for at least 26 weeks up to and including the QW or MW and they must continue to work for you right up until the baby is born or until the child is placed.

If your employee with an ongoing contract of service has a break in employment for any of the reasons below, you should still treat them as continuously employed:

  • temporary cessation of work – including short-term contract or agency workers
  • public holidays – the employee can still get SPP
  • sickness or injury – the employee can get SPP if the total period of incapacity is 26 weeks or less
  • maternity leave – if she works for you before and after the break she can get SPP
  • adoption leave – they were on adoption leave and they worked for you before and after the break, they can get SPP
  • paternity and parental leave - if the employee took paternity leave or parental leave and they worked for you before and after the break they can get SPP

Trade disputes or industrial action

For SPP your employee must have been continuously employed by you for at least 26 weeks into their QW or MW and continue to work for you until the baby is born or the child is placed.

You shouldn’t include weeks or part weeks where the employee is absent due to a trade dispute or industrial action as part of the 26 weeks, however, such weeks or part weeks don’t break the continuity of employment.

Non-cash payments

You may normally pay some of your employee’s earnings as a non-cash payment, eg providing board and lodgings or giving them goods or services. The value of the benefit provided during the SPP period may not be deducted from the SPP. You must pay any SPP in full.

Employee goes abroad

If your employee leaves the UK during the SPP period, eg to go on holiday or visit relatives living abroad, you are still liable to pay SPP during their absence.

Employee is not returning to work

If your employee isn’t returning to work you must still pay them SPP.

You can’t ask them to repay it.

Employee becomes sick

If your employee tells you that they‘re sick during the SPP period you must check whether they’re entitled to Statutory Sick Pay (SSP) or not. You can’t pay them SPP for any SPP week in which they are entitled to be paid SSP. You must give them one of the following forms:

  • SPP1 - Non-payment of Statutory Paternity Pay (SPP)

Take a copy of the declaration made by your employee on one of the following forms and give them the original back:

  • SC3 - Becoming a parent
  • SC4 - Becoming an adoptive parent
  • SC5 - Ordinary Statutory Paternity Pay and ordinary paternity leave when adopting from abroad
  • SC7 - Additional Statutory Paternity Pay/additional paternity leave - becoming a parent
  • SC8 - Additional Statutory Paternity Pay/additional paternity leave - becoming an adoptive parent
  • SC9 - Additional Statutory Paternity Pay/additional paternity leave - adopting a child from abroad
  • SC10 - Additional Statutory Paternity Pay/additional paternity leave - death of the mother/adopter

Bear in mind that:

  • SPP weeks can start on any day of the week
  • your employee won’t normally be entitled to be paid SSP from the first day they are incapable of work

Employee works for another employer

If your employee works for another employer during the SPP period after the baby is born or the child is placed, you need to check whether they were employed by that employer during the QW or MW. It’s up to your employee to tell you that they‘re working for another employer.

If your employee’s working for someone who:

  • employed them in the QW or MW, you should continue to pay them SPP as normal
  • didn’t employ them in the QW or MW, you must stop paying SPP from the start of the week they work for that employer

Your liability to pay SPP ends completely on the last day of the week SPP was paid before they started work. You must give them form SPP1 - Non-payment of Statutory Paternity Pay.

Take a copy of the declaration made by your employee on either of the following forms and send the original back:

  • SC3 - Becoming a parent
  • SC4 - Becoming an adoptive parent

You can’t pay SPP for any SPP week your employee is in legal custody or for any week in the pay period after that. You must give them one of the following forms:

  • SPP1 - Non-payment of Statutory Paternity Pay

Take a copy of the declaration made by your employee on one of the following forms and give them the original back:

  • SC3 - Becoming a parent
  • SC4 - Becoming an adoptive parent
  • SC5 - Ordinary Statutory Paternity Pay and ordinary paternity leave when adopting from abroad
  • SC7 - Additional Statutory Paternity Pay/additional paternity leave - becoming a parent
  • SC8 - Additional Statutory Paternity Pay/additional paternity leave - becoming an adoptive parent
  • SC9 - Additional Statutory Paternity Pay/additional paternity leave - adopting a child from abroad
  • SC10 - Additional Statutory Paternity Pay/additional paternity leave - death of the mother/adopter

It’s your employee’s responsibility to tell you if they are taken into legal custody. Your employee is in legal custody if they are detained. Usually this means they are arrested or in prison.

They aren’t in legal custody if they are:

  • voluntarily helping police with their enquiries
  • out on bail
  • serving a suspended sentence
Published 18 March 2014
Last updated 6 April 2016 + show all updates
  1. Rates, allowances and duties have been updated for the tax year 2016 to 2017.
  2. First published.