Day-One Paternity Leave: The Leave-vs-Pay Distinction Most Employers Miss

Paternity leave is now a day-one right. Paternity pay is not. Getting this wrong could cost you at tribunal.

The Employment Rights Act 2025 made paternity leave a day-one employment right. That sentence sounds simple, and most communications about it have stopped there. But there is a second sentence that changes everything for employers: paternity pay remains subject to a 26-week service qualifying period.

The gap between those two sentences is where employers are making mistakes — and where employees are making tribunal claims. A new starter who joins your business on a Monday and becomes a father the following Thursday has the right to take two weeks of paternity leave. He does not have the right to statutory paternity pay during that leave. He takes unpaid leave. Getting the communication of that distinction wrong — either refusing the leave entirely, or accidentally paying SPP to someone who hasn't qualified — creates problems in different directions.

The legal position, precisely

Before the ERA 2025, paternity leave required 26 weeks' continuous employment with the same employer before the expected week of childbirth. Both leave and pay had the same qualifying threshold. That is no longer the case.

Under the amended legislation:

• Paternity leave (up to two consecutive weeks) is available from the first day of employment. No service requirement applies.
• Statutory Paternity Pay (SPP) remains payable only to employees who have been continuously employed for at least 26 weeks by the 15th week before the expected week of childbirth. The SPP rate is £194.32/week or 90% of average weekly earnings, whichever is lower.

The practical implication: an employee can take up to two weeks off work for paternity leave from day one, but if they haven't served 26 weeks, that leave is unpaid (unless your own company policy is more generous).

Refusing to grant paternity leave to a new employee because they haven't worked for 26 weeks is now unlawful. Refusing to pay SPP to someone with less than 26 weeks' service is correct. The leave and the pay are governed by different rules.

Why this distinction trips up employers

Several reasons. First, the previous position was symmetrical — both leave and pay required 26 weeks — so HR systems, policy documents, and manager training were all built on a single qualifying threshold. Updating the pay threshold without updating the leave threshold (or vice versa) is an easy error.

Second, many HR software platforms and even some law firm guides published in early 2025 got this wrong. If you updated your paternity policy based on an early guidance document, check what it actually says about the leave entitlement for new starters versus the pay entitlement. They should now diverge.

Third, the natural instinct when a new employee asks about paternity leave is to say "you need to have been here for six months." That statement is now wrong. It conflates the leave right (which has no service requirement) with the pay right (which requires 26 weeks).

The full paternity leave picture

Paternity leave under the ERA 2025 is one or two consecutive weeks, taken within 52 weeks of the child's birth or adoption placement. The employee must give notice — ordinarily at least 15 weeks before the expected week of childbirth — specifying the expected week of birth and the intended leave start date.

The ERA 2025 also introduced flexibility on when paternity leave can be taken. Previously, it had to be taken as one or two consecutive weeks immediately after birth. The new rules allow it to be taken at any point within the 52-week window following birth. This is a significant change for fathers who want to stagger their leave — for example, taking it when the mother returns to work rather than immediately after birth.

Unpaid parental leave: also day-one now

Unpaid parental leave (18 weeks per child, up to the child's 18th birthday) is now also a day-one right. Previously it required one year's service. This is a separate entitlement from paternity leave and is available to both parents.

The 18 weeks is per child, not per parent and per child — both parents have 18 weeks each. Leave is unpaid. Individual weeks can be taken (subject to notice requirements), or up to four weeks per year unless the employer agrees otherwise. The leave must be taken in complete weeks unless the child is disabled.

For employers managing small teams, the day-one right to unpaid parental leave is a more significant operational change than it may appear. A new employee could, in theory, join your business and immediately request unpaid parental leave for a child under 18. You cannot refuse, but you can postpone it by up to six months if the business cannot reasonably accommodate it at that time — provided the postponement doesn't result in the employee losing the right (i.e. because the child will turn 18 during the postponement period).

Bereaved Partner's Paternity Leave

The ERA 2025 created a new entitlement: Bereaved Partner's Paternity Leave. This applies where the mother or primary adopter dies during or shortly after birth. The surviving partner is entitled to up to 52 weeks of leave to care for the child. This right is available from day one of employment.

The pay position for Bereaved Partner's Paternity Leave mirrors ordinary paternity leave: statutory pay requires 26 weeks' service; the leave itself does not. The right also applies to partners of mothers who die before the child's first birthday.

Most employers will never need to apply this provision. But it is a statutory right, and HR managers and line managers should be aware it exists — both to ensure it is granted correctly if it ever arises, and to handle the circumstances with appropriate care.

What to tell new starters

Your written statement of employment particulars must include information about paid leave entitlements. Under the ERA 2025, this now includes paternity leave and the distinction between the leave right and the pay right.

The statement should make clear:

• The entitlement to paternity leave from day one (one or two consecutive weeks)
• That SPP requires 26 weeks' service (and the current rate)
• That unpaid parental leave (18 weeks per child) is available from day one
• The notice requirements for paternity leave

If you have a company paternity pay policy that is more generous than the statutory minimum — enhanced pay for longer periods, or enhanced pay available before 26 weeks — document it clearly and apply it consistently. Inconsistent application of enhanced pay is a discrimination risk.

The reference period problem

SPP is calculated on average weekly earnings in the eight-week period ending at the 15th week before the expected week of childbirth. For a new employee who has been in post for less than eight weeks at that reference point, the average earnings calculation is based on however many weeks they have worked. A new employee who qualifies for SPP (having reached 26 weeks' service in time) but has variable hours may receive a different SPP rate than a long-tenured employee with the same nominal salary. This is correct — it is how the calculation works — but it can cause confusion if managers haven't been briefed.

Policy update checklist

The table version

The tribunal risk here is not primarily about money — SPP amounts are not large. The risk is detriment claims: an employee who is told they cannot take paternity leave, or who is treated adversely for taking it, has a straightforward case. Day-one rights that employers routinely misapply are fertile ground for Employment Tribunal claims, because the law is clear and the employer's error is demonstrable from their own written communications.

Sources

• Employment Rights Act 2025 (legislation.gov.uk)
• GOV.UK — Paternity pay and leave
• GOV.UK — Parental leave
• GOV.UK — ERA 2025 implementation timeline
• Acas — Paternity leave and pay guidance