Norton Rose's Paul Griffin on why the low uptake of new paternity rules has left many questions unanswered

The new additional paternity leave regulations apply for children born (or adopted) after 3 April 2011. Fathers now have the right to take up to 26 weeks of additional paternity leave (APL). This can be taken from 20 weeks following the baby's birth up until its first birthday. While this may be good news for would-be parents, it is likely to be problematic to employers.

To qualify, a father must have been in continuous employment for at least 26 weeks by the end of the 15th week before the week the baby is due. In addition, the mother must have returned to work and have some of her entitlement to statutory maternity leave and pay still available. This may create difficulties as, in most cases, the parents don't work for the same employer. Can an employer realistically ensure that the mother has returned to work, particularly if she is self-employed?

The Government has aimed for a 'light-touch' approach and the administration of the scheme relies primarily on self-certification by parents. However, the regulations do take some active steps. They require the father to give at least eight weeks' notice to the employer of his intention to take APL, and both the mother and the father must provide separate signed declarations, including information such as the child's birth date and the status of the parents' relationship.

The employer may also request further information from the father, such as details of the mother's employer or a copy of the birth certificate. This information will be used to calculate the amount of leave and statutory pay to which the father is entitled. But what happens if the father is unable or unwilling to provide the information (eg, following a conflict with the mother)? There are no enforcement provisions to rely on, and employers may find themselves having to depend solely on the father's declaration.

Another tricky issue for employers concerns the continuation of benefits and rights to any enhanced payment that a woman on additional maternity leave might receive. Fathers currently have the right to all the usual terms and conditions of their employment except salary, which is replaced by statutory paternity pay. A father will receive this amount even if the mother was entitled to enhanced contractual pay. This raises a difficult question. Should the father be equally entitled to this enhanced pay, as well as other benefits (eg, return to work bonuses)? Failure to provide such benefits may arguably be discriminatory on grounds of sex.

The Equality Act 2010 provides an exemption in sex discrimination claims for "special treatment" afforded to women to protect the biological condition of new mothers and the relationship with the child following birth. Any benefits aimed at, for example, child care or encouraging a parent to return to work would not appear to fall within this exemption. Arguably, therefore, such benefits should be given to the father as well as the mother. Recent European Court of Justice (ECJ) decisions have given weight to this argument, although currently nothing is certain.

A further matter to consider is holiday entitlement. Holiday leave will continue to accrue while on APL. What is unclear is when holiday can be taken. The ECJ has ruled that holidays cannot be taken during maternity leave in order to protect the woman's health and relationship with the child following the birth. Again, these considerations clearly don't apply to fathers, who should arguably be able to take holiday and APL together.

The full impact of the regulations is difficult to gauge as the level of uptake remains unclear. While employers are dealing with these issues, the Government has already proposed a further change to the APL regime in the form of the Coalition-proposed 'shared flexible parental leave' scheme. The aim is for this to come into force in 2015.

Paul Griffin (pictured) is head of employment and labour at Norton Rose in London.