The Employment (Amendment) Ordinance was passed on 24 December 2014 and came into force on 27 February 2015. It amends the Employment Ordinance (Cap 57) and entitles working fathers and fathers-to-be up to three days of paid paternity leave.

Taking Paternity Leave
A male employee is entitled to three days of paternity leave in respect of the birth of a child if he fulfills the following criteria.

1. He is the child’s father
2. He has been employed under a continuous contract immediately prior to taking paternity leave
3. He has provided the required notification to his employer.

A continuous contract is where the employee has been employed by the same employer for four weeks or more, for at least 18 hours each week.

The employee must notify his employer of his intention to take paternity leave at least three months prior to the expected date of delivery of the child. The employee may also notify the employer as to the exact date of the leave at this stage, although this is not an absolute requirement. Prior to taking leave, the employee must then inform his employer as to the exact date(s) he intends to take leave.

Alternatively, if the employee fails to give the three months’ advance notice to his employer as mentioned above, he must notify his employer at least five days prior to the intended date of leave before taking the paternity leave.

The employer may require the employee to provide a signed written statement confirming that he is the child’s father, the name of the child’s mother and the expected delivery date of the child (or the actual delivery date if the child has already been born).

The employee may take the three days of paternity leave consecutively or separately.

The relevant period for paternity leave begins four weeks prior to the expected delivery date and ends 10 weeks after the actual date of delivery.

Paternity Leave is Not Affected by Other Leave Entitlements
An employee’s right to paternity leave is in addition to his entitlement to rest days, holidays and annual leave under the Employment Ordinance.

If an employee has notified his employer of his intention to take paternity leave but it falls on a rest day, a holiday or during a period of annual leave, he is entitled to take paternity leave on the next work day. Alternatively, he may take the paternity leave on another day of his choice provided he gives two days’ notice. This day may fall on a day after the end of the 10 week period mentioned above.

Paternity Leave Pay
An employee is entitled to paternity leave pay if he has been employed under a continuous contract for no less than 40 weeks immediately before taking the paternity leave, and has provided his employer with the relevant birth certificate (or medical certificate where appropriate). The documentation must be provided within 12 months after the first day of paternity leave or within six months of the cessation of employment if the employment has been terminated.

Paternity leave pay is calculated at 80% of the employee’s average daily wage during the preceding 12 months. It must be paid no later than the date on which the employee is next paid his wages after the date of paternity leave(or after the date on which the documentation was provided, where appropriate). Where the employee’s employment has ceased, paternity leave must be paid no later than seven days after the cessation of his employment.

Penalty for Breach
An employer who fails to grant paternity leave or pay the employee without reasonable excuse is liable to prosecution and, upon conviction, to a fine of HK$50,000.

Conclusion
Employers and employees should be mindful of their obligations and rights in relation to paternity leave. Employers are advised to review and update their internal policies and procedures to ensure that they comply with Hong Kong law.

While the amount of paternity leave to which an employee is entitled under Hong Kong law is less than that of some other jurisdictions (ie Singapore provides for a total of one week of paid paternity leave), the change is nevertheless a welcome development. It reflects the efforts of the Hong Kong Government to balance the interests of employers and the protection and advancement of labour rights and brings Hong Kong in line with international practice.