Employer refusing paternity pay; dating issues. Advice?

[StormyBrid]

Asking on behalf of my brother, as his work have just told him they're not giving him paternity pay (I assume on a company scheme rather than standard). They've refused it on the grounds that he wasn't working for them at the start of the pregnancy.

Due date: 21/10/13
Work started: 21/1/13
LMP as recorded in SIL's maternity notes: 18/1/13

It looks as though they've counted back forty weeks from the due date, and are getting 14/1/13 - a week before my brother started working for them. But the way pregnancies are dated means one isn't actually pregnant for the first couple of weeks, and SIL wasn't actually pregnant when my brother's job started. Any advice on what he should do next? Has he got a hope in hell of getting this paternity pay? Surely they can't refuse it when she didn't conceive until after he started?

According to gov.uk:

"You must have worked for your employer continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth (known as the ‘qualifying week’)"

So it does look as if he is only just missing out on paternity pay. :-(

If its a company paternity leave scheme, they may be entitled to set their own dates for entitlement, but ordinary paternity leave is available (I think) if he has been with his employer "for at least 26 weeks by the end of the 15th week before the start of the week when the baby is due".

If the baby is due on 21 October 2013, that's the start of the week, so the 15th week before is the week commencing 8th July. The end of that week is Sunday 14th July. To have been employed for 26 weeks before 14th July, he'd have had to have started on Monday 14th January at the very latest. I might be wrong, but I think he started too late.

Mm, I spotted that too. But company policies can be different so long as they're not offering less, right? I'll tell him to get a copy of the company policy, and keep fingers crossed it doesn't contain that 26 weeks by 15 weeks before bit. This is going to get complicated, isn't it?

Thanks for the speedy responses and links.

Sorry should have been clearer, to be entitled to company maternity / paternity pay, as it is over and above ordinary paternity pay, the threshold is usually higher (i.e. you have to have been employed for at least a year etc). So it looks to me as though he's unlikely to be entitled to either his company paternity pay or even ordinary paternity pay.

He's just texted me asking for clarification: is it relevant that he wasn't unemployed at all, but moved straight from the previous job to the current one with no gap in employment?

Afraid that doesn't matter. Why doesn't he speak to his employer and ask if he can take two weeks annual leave as soon as the baby is born?

Unless his company has enhanced pay this would be preferable as he would otherwise drop to statutory of about £135 per week for the two weeks he is off.

No it's not relevant. He needed to gave been working for that employer on the qualifying date.

If it's statutory only there is no element of discretion at all, so it's not that they are "refusing" it, he simply isn't entitled to it so there is no way they can give it to him.

If it's the company's enhanced scheme he's talking about, then it is their decision who gets it, however they will also have set rules about who is entitled to it, and it would be very unusual to offer enhanced paternity pay to employees who are not even entitled to the statutory minimum. Check the scheme rules by all means but it would be very surprising if they are wrong.

It is the enhanced scheme, yes. Based on what's been said here, I'm not hopeful. He's going to talk to his boss though - payroll said he missed eligibility by two days, not a week, and said they'd refused because she was pregnant when he started, which he's going to attempt to demonstrate wasn't the case. I wish I could see the policy myself, it'd make it much easier to help!

Although she may not technically have been pregnant when she started, what they mean is she had started her 40 week pregnancy before he started, as obviously in terms of dating, pregnancy "starts" on the first day of the woman's previous period. This means that he would not have been employed for 26 weeks by the time she was 26 weeks pregnant.

The policy will say that, it won't be anything to do with conception date so there's no point him trying to prove that. His best hope is that they take pity on him missing it so closely and exercise discretion and give it to him anyway. The other problem is that because he is not entitled to SPP, giving him the enhanced payment someone else would get will be more expensive. They probably "top up" SPP to full pay I imagine, but as they won't be able to claim SPP in respect of his leave, full pay would cost them the whole lot.

He can only ask, you never know they might give it him, or something at least. Just make sure he approaches it in that way rather than trying to prove anything or being cross with them for refusing it.

26 weeks by 25 weeks pregnant sorry.