Statutory Paternity Pay: employee circumstances that affect payment
Find out what you need to do when an employee leaves, becomes sick, dies, or if the child is born early or dies.
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
- pay the extra Statutory Paternity Pay (SPP) due
If your employee was not entitled to SPP, you must recalculate their average weekly earnings to check if they may now be entitled and pay any SPP due.
Employee does not qualify for SPP: PAYE Settlement Agreements
You must recalculate your employee’s average weekly earnings if all of the following apply:
- their average weekly earnings 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 average weekly earnings 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 will not 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, 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 do not 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
Employees still qualify for Paternity Pay and leave if the baby is either:
- stillborn from 24 weeks of pregnancy
- born alive at any point in the pregnancy but later dies
Employees are able to take any paternity leave booked prior to the death of the child. Any leave that has not been already booked can be booked and taken within 8 weeks of the child’s death.
Parents may also be eligible for Parental Bereavement Leave and Pay.
Child stops living with the adopter
Payments will be affected if the child stops living with the adopter or is returned after being placed for adoption during the first year following birth or placement.
Employees are able to have any Paternity Pay or leave that was booked prior to the child no longer living with the adopter. Any leave which has not been booked by that point must be booked and taken within 8 weeks of the child no longer living with the adopter.
Child is not placed or placed later
Your employee cannot be paid until the child is placed. They must tell you when the child is placed so you know when to start paying them. Do not 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 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 is taken
If your employee has left their job, they cannot get paternity leave. 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 does not matter why they left or that they’re not coming back — they’re entitled to SPP as long as they do not 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 either:
- the day after the baby is born
- 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 cannot 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 you dismissed your employee and they are then reinstated, they may be entitled to paternity leave.
If they did not work for you during the period starting 26 weeks before the qualifying week or matching week and ending when the baby was born or child was placed, they are entitled to paternity leave if 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
All the other conditions to entitlement must be satisfied.
Reinstatement after armed forces service
If your employee did not 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, they may still be able to get SPP under the Reserve Forces (Safeguard of Employment) Regulations.
For SPP they must have both:
- been continuously employed by you for 26 weeks up to and including the qualifying week or matching week
- 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, your employee must have been continuously employed by you for at least 26 weeks up to and including the qualifying week or matching week. 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 following reasons, 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 the employee works for you before and after the break they can get SPP
- adoption leave — if the employee was 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 qualifying week or matching week. They must continue to work for you until the baby is born or the child is placed.
You should not 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 do not break the continuity of employment.
Non-cash payments
You may normally pay some of your employee’s earnings as a non-cash payment, for example 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, for example 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 is not returning to work, you must still pay them SPP. You cannot 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 or not. You cannot pay them SPP for any SPP week in which they are entitled to be paid Statutory Sick Pay.
You must give them form 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 (if your employee used the online form, they will need to download or print the form after completing it):
- form SC3 — becoming a parent
- online form (this replaces from SC4) — becoming an adoptive parent
- online form (this replaces form SC5) — ordinary Statutory Paternity Pay and Leave when adopting from abroad
Bear in mind that:
- SPP weeks can start on any day of the week
- your employee will not normally be entitled to be paid Statutory Sick Pay from the first day they are incapable of work
Employee works for another employer
New arrangements will apply to parents of babies with an expected date of birth after 6 April 2024, or an expected adoption placement on or after 6 April 2024. For parents of babies expected to be born or placed for adoption before these dates existing arrangements apply.
If your employee works for another employer during a week for which they are claiming Statutory Paternity Pay, you need to check whether they were employed by that employer during the qualifying week or matching week. If they were not, it’s up to your employee to tell you that they’re working for that employer.
If your employee is working for someone who employed them in the qualifying week or matching week, you should continue to pay them SPP as normal.
If your employee works for someone who did not employ them in the qualifying week or matching week, you must not pay them for the weeks they worked for this second employer. Instead, you must give them form SPP1 — non-payment of Statutory Paternity Pay.
The employee will still retain their right to claim a second week of Paternity Pay in future if they have not yet claimed their full entitlement.
Take a copy of the declaration made by your employee on either of the following forms and send the original back (if your employee used the online form, they will need to download or print the form after completing it):
- form SC3 — becoming a parent
- online form (this replaces from SC4) — becoming an adoptive parent
The employee will still retain their right to claim future Paternity Pay and leave if they have not yet claimed their full entitlement.
Employee taken into legal custody
New arrangements will apply to parents of babies with an expected date of birth after 6 April 2024, or an adoption placement on or after 6 April 2024. For parents of babies expected to be born or placed for adoption before these dates, existing arrangements apply.
Employees taken into police custody while claiming Paternity Pay, who are released without charge or custodial sentence, will have their Paternity Pay entitlement reinstated for:
- that week held in custody
- any subsequent week not yet taken
Employees who receive a custodial sentence will not lose their right to claim a second week of Paternity Pay in the future. For further details, read form SPP1.
Take a copy of the declaration made by your employee on one of these forms and give them the original back (if your employee used the online form, they will need to download or print the form after completing it):
- form SC3 — becoming a birth parent
- online form (this replaces from SC4) — becoming an adoptive parent
- online form (this replaces form SC5) — ordinary Statutory Paternity Pay and Leave when adopting from abroad
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 are not in legal custody if they are:
- voluntarily helping police with their enquiries
- out on bail
- serving a suspended sentence
Last updated 17 April 2024 + show all updates
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The Statutory Paternity Pay and leave forms for becoming an adoptive or parental order parent (SC4) and adopting a child from abroad (SC5) have been replaced with the 'Ask your employer for Statutory Paternity Pay and/or Paternity Leave' online form. The Statutory Paternity Pay and leave forms for becoming a parent (SC7), becoming an adoptive parent (SC8), adopting a child from abroad (SC9) and death of the mother or adopter (SC10) have been removed, as they are no longer in use. Information for employees who were on furlough under the Coronavirus Job Retention Scheme has been removed.
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The sections 'Child dies', 'Child stops living with the adopter', 'Employee taken into legal custody' and 'Employee works for another employer' have been updated with changes to how paternity leave can be taken and notice periods.
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Information added on how to work out Average Weekly Earnings for employees furloughed under the Coronavirus Job Retention Scheme.
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Rates, allowances and duties have been updated for the tax year 2016 to 2017.
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First published.