Bill could give birth to new rights for working dads
A bill that will amend the Employment Ordinance to provide statutory paternity leave to working fathers was introduced into the Legislative Council on March 26, 2014. Here are some of the key terms of the bill and suggestions on what employers and employees should do if and when the bill becomes law.
A male employee will be entitled to take up to three days’ of unpaid paternity leave around the birth of his child. He will only be eligible for the leave if he is the father of the child and has been employed by his employer under a continuous contract with more than 18 working hours per week for at least four weeks prior to the leave.
If the employee has been employed under a continuous employment contract with more than 18 working hours per week for at least 40 weeks prior to the date of the leave, he will be entitled to take up to three days of paid paternity leave. The rate of payment is 80 per cent of the daily average of the wages earned by the employee during the 12 months preceding the commencement of the leave. The employee must provide his employer with the birth certificate of his child in order to receive payment for the period of paternity leave.
There is no need for the employee to be married to the mother of his child in order to qualify. However, there is no provision for paternity leave in relation to the adoption of a child by the employee.
The Employee’s Obligations
An expectant father must notify his employer of his intention to take paternity leave at least three months before the expected date of birth of his child. The employee must then provide his employer with at least two days’ notice of the dates on which he intends to take paternity leave.
If the employee fails to provide his employer with three months’ notice of his intention to take paternity leave, he can still provide his employer with five days’ notice of the date on which he intends to take the leave.
There is no need for the employee to provide proof to the employer that the mother of his child is pregnant in order for him to be entitled to take paternity leave. However, the employer can request the employee provides a written statement to the effect that he is the father of the child in question, and that states the expected (or actual) date of birth of the child, in order to qualify for the leave. There is also no need for the employee to provide his child’s birth certificate to his employer unless he is seeking payment for his paternity leave.
The three days of paternity leave can be taken as a continuous block of leave or as separate days. The leave may be taken at any time during the period commencing four weeks before the expected date of birth of the child and ending 10 weeks after the actual date of birth of the child.
Any father who fulfils these criteria will be entitled to take paternity leave if their child is born on or after the date on which the bill becomes law.
The Employer’s Responsibilities
An employer who refuses to grant an employee paternity leave in circumstances where the employee is properly entitled to the leave, or fails to pay an employee for that leave where required, commits a criminal offence and is liable to pay a fine of HK$50,000.
As the bill has only recently been introduced into Legco and it is not yet known if and when it will become law, employers should monitor its progress. If it becomes law, employers will need to ensure they adhere to its requirements and provide paternity leave to their male employees in accordance with the law. Employers should also consider the best way to administer statutory paternity leave within their business.
This can include ensuring employees understand their rights to paternity leave and their obligations with respect to providing the necessary notice and documentation, and preparing a paternity leave application form for employees. This form could include a checklist of the documents the employee needs to provide; a statement that the employee is the father of the child in question; a space for the anticipated date of birth of the child; and a statement that the information provided by the employee in the form is true and accurate.
Finally, employers who already provide paternity leave to their employees should consider amending their paternity leave policies so that it is clear whether or not the new statutory paternity leave forms part of, or is in addition to, the contractual paternity leave already provided.
Herbert Smith Freehills has 2,800 lawyers and 460 partners in over 20 offices globally. It advises on dispute resolution and employment, among other areas. Gareth Thomas is head of the Hong Kong commercial litigation team and responsible for the Greater China employment practice. Helen Beech is a senior member of the Hong Kong employment practice and has a wide range of experience in employment matters.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.