6 March 2014
Draft legislation has now been proposed which will introduce paternity leave and paternity leave pay for many of Hong Kong's employees. This legal update sets out the key elements of the proposed new benefit.
Who is entitled to Paternity Leave?
- Every employee who is employed under a "continuous contract" (i.e., satisfies the "418" rule) is entitled to three days' Paternity Leave in respect of the birth1 of each child2 of which he is the "father".
- The term "father" is not defined in the new legislation. It is, however, defined in section 5 of the Parent and Child Ordinance (Cap.429)3 which provides that a man is presumed to be the father of a child if:-
- the father was married to the mother at the time of conception or birth, or
- he is registered as the father on the register of births.
When can Paternity Leave be taken?
- The three days of Paternity Leave can be taken consecutively or separately. Such days can be taken at any time in the period commencing four weeks prior to the expected date of birth and ending 10 weeks after the actual date of birth.
Note: A father can take Paternity Leave before, as well as after, the birth.
What does the father need to do to be entitled to Paternity Leave?
- The father does not need to provide any proof of any pregnancy. However, the father does need to give his employer appropriate notice of his intention to take Paternity Leave on a particular day.
- The amount of appropriate notice required to be given by the father to his employer is either five days or two days before the intended Paternity Leave. If the employee has previously informed his employer of the impending birth at least three months prior to the expected date of delivery then the employee can take Paternity Leave on only two days' notice. If, however, the father has not notified the employer of the impending birth at least three months prior to the expected date of birth then the employee is required to give five days' notice of his intention to take Paternity Leave.
Note: The employer may receive a five-day notice of Paternity Leave without any prior knowledge that the employee was to be a father.
- In addition to the two or five days of notice, the father must (but only where the employer "requires" him to do so) provide the employer with a signed statement setting out:-
- the name of the child's mother,
- that he is the child's father, and
- the expected or actual date of delivery of the child.
When is the father entitled to Paternity Leave Pay?
- Where the father has been continuously employed for at least 40 weeks before any day of Paternity Leave then, subject to providing his employer with the necessary proof of fatherhood (normally the birth certificate4) he is entitled to Paternity Leave Pay. Paternity Leave Pay is basically calculated as for maternity leave pay (80 percent of "daily average wages").
When must the Paternity Leave Pay be paid?
- Paternity Leave Pay need not be paid until the employee has provided the necessary proof of fatherhood. As the proof of fatherhood will only be available after the birth, Paternity Leave taken before the birth will only become payable sometime after the birth (and after the proof of fatherhood is provided to the employer).
- The father cannot claim Paternity Leave Pay if he fails to provide the proof of fatherhood within 12 months of the date of the Paternity Leave or if he ceases employment and fails to provide the proof of fatherhood within six months after ceasing employment (whichever is shorter).
- Paternity Leave Pay must be paid with the next wages following the date on which proof of fatherhood is provided (or within seven days if confirmed after cessation of employment). This will be the case even if the proof of fatherhood is provided the day before payroll. A failure to pay on such day is an offence.
Points to Note
- The employee does not need to prove he is the father in order to receive Paternity Leave and the employer cannot demand such proof.
- The employer can require an employee seeking Paternity Leave to sign a statement that he is the father and naming the mother, but the employer cannot ask for further information concerning the mother (her address or identity card details, for example).
- The employer has no right to see the birth certificate of the child unless the father claims Paternity Leave Pay.
- In contrast, maternity leave is only granted to a mother on provision of a medical certificate confirming pregnancy.
We suggest that each employer should create a standard Application Form which each employee should complete when applying for Paternity Leave. This Application Form should reflect the new self-certification provision in the Employment Ordinance and also contain a statement along the following lines:-
"[Company] is relying upon this statement in granting you Paternity Leave. Should any aspect of such statement be found to be incorrect or incomplete then this may amount to fraud."
1 This does not apply to a miscarriage (being a pregnancy which fails within 28 weeks of conception).
2 Multiple births (twins/triplets etc.) are treated as a single child for Paternity Leave purposes.
3 The Parent and Child Ordinance contains specific provisions to deal with sperm and egg donors.
4 There are specific statutory provisions dealing with the circumstance where a baby is stillborn or dies shortly after birth (in which case no birth certificate may be available). There are also special provisions dealing with birth outside Hong Kong.