Children and Families Bill

Session 2012 - 13
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Children and Families Bill

Children and Families Bill
Part 7 — Time off work: ante-natal care etc
105

(b)
the other person with whom the child is to be, or is expected to
be, placed for adoption has made an election for the purposes of
subsection (1)(b) or section 57ZL(1)(b) in connection with the
adoption.
(3)
An agency worker is not entitled to take time off under this section on
5
or after the date of the child’s placement for adoption with the agency
worker.
(4)
In relation to any particular adoption, an agency worker is not entitled
to take time off under this section on more than two occasions.
(5)
On each of those occasions, the maximum time off during working
10
hours to which the agency worker is entitled is six and a half hours.
(6)
An agency worker is not entitled to take time off under this section
unless the appointment has been arranged by or at the request of the
adoption agency which made the notification described in subsection
(1)(a).
15
(7)
An agency worker is not entitled to take time off under this section
unless, if the temporary work agency or the hirer requests it, the agency
worker gives that person—
(a)
a declaration signed by the agency worker stating that the
agency worker has made an election for the purposes of
20
subsection (1)(b) in connection with the adoption, and
(b)
a document showing the date and time of the appointment in
question and that it has been arranged as described in
subsection (6).
(8)
A declaration or document requested under subsection (7) may be
25
given in electronic form.
(9)
In cases where more than one child is to be, or is expected to be, placed
for adoption with an agency worker and another person jointly as part
of the same arrangement, this section has effect as if—
(a)
the purposes specified in subsection (1) were the purpose of
30
having contact with any one or more of the children and any
other purpose connected with any of the adoptions that are part
of the arrangement;
(b)
the references in subsections (1)(b) and (7)(a) to the adoption
were references to all of the adoptions that are part of the
35
arrangement;
(c)
the references in subsection (2) to the adoption were references
to any of the adoptions that are part of the arrangement;
(d)
the reference in subsection (3) to the date of the child’s
placement for adoption were a reference to the date of
40
placement of the first child to be placed as part of the
arrangement;
(e)
the reference in subsection (4) to a particular adoption were a
reference to the adoptions that are part of a particular
arrangement.
45
(10)
For the purposes of this section the working hours of an agency worker
are to be taken to be any time when, in accordance with the terms under
which the agency worker works temporarily for and under the

Children and Families Bill
Part 7 — Time off work: ante-natal care etc
106

supervision and direction of the hirer, the agency worker is required to
be at work.
(11)
In this section “adoption agency” means an adoption agency within the
meaning of section 2 of the Adoption and Children Act 2002 or as
defined by section 119(1)(a) of the Adoption and Children (Scotland)
5
Act 2007.
57ZQ
Complaint to employment tribunal: agency workers
(1)
An agency worker may present a complaint to an employment tribunal
that the temporary work agency—
(a)
has unreasonably refused to let him or her take time off as
10
required by section 57ZN or 57ZP, or
(b)
has failed to pay the whole or any part of any amount to which
the agency worker is entitled under section 57ZO.
(2)
An agency worker may present a complaint to an employment tribunal
that the hirer has unreasonably refused to let him or her take time off as
15
required by section 57ZN or 57ZP.
(3)
An employment tribunal may not consider a complaint under
subsection (1) or (2) unless it is presented—
(a)
before the end of the period of three months beginning with the
day of the appointment in question, or
20
(b)
within such further period as the tribunal considers reasonable
in a case where it is satisfied that it was not reasonably
practicable for the complaint to be presented before the end of
that period of three months.
(4)
Sections 207A(3) and 207B apply for the purposes of subsection (3)(a).
25
(5)
Where an employment tribunal finds a complaint under subsection (1)
or (2) well-founded, it must make a declaration to that effect.
(6)
If the complaint is that the temporary work agency or hirer has
unreasonably refused to let the agency worker take time off as required
by section 57ZN, the tribunal must also order payment to the agency
30
worker of an amount that is twice the amount of the remuneration to
which the agency worker would have been entitled under section 57ZO
if the agency worker had not been refused the time off.
(7)
If the complaint is that the temporary work agency has failed to pay the
agency worker the whole or part of any amount to which the agency
35
worker is entitled under section 57ZO, the tribunal must also order the
temporary work agency to pay to the agency worker the amount which
it finds due to the agency worker.
(8)
If the complaint is that the temporary work agency or hirer has
unreasonably refused to let the agency worker take time off as required
40
by section 57ZP, the tribunal must also order payment to the agency
worker of an amount determined in accordance with subsection (9).
(9)
The amount payable to the agency worker under subsection (8) is—
A x B x 2

where—
45

Children and Families Bill
Part 7 — Time off work: ante-natal care etc
107

(a)
A is the appropriate hourly rate for the agency worker
determined in accordance with section 57ZO(2) and (3), and
(b)
B is the number of working hours for which the agency worker
would have been entitled under section 57ZP to be absent if the
time off had not been refused.
5
(10)
Where the tribunal orders that payment under subsection (6) or (8) be
made by the temporary work agency and the hirer, the proportion of
that amount payable by each respondent is to be such as may be found
by the tribunal to be just and equitable having regard to the extent of
each respondent’s responsibility for the infringement to which the
10
complaint relates.
57ZR
Agency workers: supplementary
(1)
Without prejudice to any other duties of the hirer or temporary work
agency under any enactment or rule of law, sections 57ZN to 57ZQ do
not apply where the agency worker—
15
(a)
has not completed the qualifying period, or
(b)
pursuant to regulation 8(a) or (b) of the Agency Workers
Regulations 2010 (S.I. 2010/93), is no longer entitled to the
rights conferred by regulation 5 of those Regulations.
(2)
Nothing in sections 57ZN to 57ZQ imposes a duty on the hirer or
20
temporary work agency beyond the original intended duration, or
likely duration, of the assignment, whichever is the longer.
(3)
Sections 57ZN to 57ZQ do not apply where sections 57ZJ to 57ZM
apply.
(4)
In this section and sections 57ZN to 57ZQ the following have the same
25
meaning as in the Agency Workers Regulations 2010—
“agency worker”;
“assignment”;
“hirer”;
“qualifying period”;
30
“temporary work agency”.
57ZS
Placement of looked after children with prospective adopters
(1)
Subsection (2) applies where a local authority in England notifies a
person—
(a)
who is a local authority foster parent, and
35
(b)
who has been approved as a prospective adopter,

that a child is to be, or is expected to be, placed with that person under
section 22C of the Children Act 1989.
(2)
Where this subsection applies, sections 57ZJ, 57ZL, 57ZN and 57ZP
have effect as if—
40
(a)
references to adoption or placement for adoption were
references to placement of a child under section 22C of the
Children Act 1989 with a local authority foster parent who has
been approved as a prospective adopter;
(b)
references to placing for adoption were references to placing a
45
child under section 22C of that Act with a local authority foster
parent who has been approved as a prospective adopter;

Children and Families Bill
Part 7 — Time off work: ante-natal care etc
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(c)
references to an adoption agency were references to a local
authority in England.
(3)
Where a child is placed under section 22C of the Children Act 1989 with
a local authority foster parent who has been approved as a prospective
adopter, notification of that person by an adoption agency during that
5
placement that the child is to be, or is expected to be, placed with that
person for adoption is not to give rise to a right to time off under section
57ZJ, 57ZL, 57ZN or 57ZP for that person or another person.”
(2)
In the Employment Rights Act 1996—
(a)
in section 47C (right not to be subject to detriment: leave for family
10
reasons), in subsection (2) (prescribed reasons), after paragraph (aa)
(inserted by section 97(2)(a)) there is inserted—
“(ab)
time off under section 57ZJ or 57ZL,”;
(b)
in section 80B (entitlement to ordinary paternity leave: adoption), in
subsection (5) (provision that may be made in regulations under
15
subsection (1)), after paragraph (b) there is inserted—
“(ba)
make provision excluding the right to be absent on leave
under this section in the case of an employee who has
exercised a right to take time off under section 57ZJ;”;
(c)
in section 99 (being regarded as unfairly dismissed: leave for family
20
reasons), in subsection (3) (prescribed reasons), after paragraph (aa)
(inserted by section 97(2)(b)) there is inserted—
“(ab)
time off under section 57ZJ or 57ZL,”;
(d)
in section 225 (the calculation date in finding a week’s pay), after
subsection (3A) (inserted by section 97(2)(c)) there is inserted—
25
“(3B)
Where the calculation is for the purposes of section 57ZK or
57ZM, the calculation date is the day of the appointment.”;
(e)
in section 235 (other definitions), in subsection (1), at the appropriate
place there is inserted—
““local authority”, in relation to the placement of children
30
under section 22C of the Children Act 1989, has the same
meaning as in that Act (see section 105(1) of that Act);”;
““local authority foster parent” has the same meaning as in
the Children Act 1989 (see section 22C(12) of that Act);”.
99
Right not to be subjected to detriment: agency workers
35
(1)
In section 47C of the Employment Rights Act 1996 (right not to be subjected to
detriment for taking leave for family and domestic reasons), after subsection
(4) there is inserted—
“(5)
An agency worker has the right not to be subjected to any detriment by
any act, or any deliberate failure to act, by the temporary work agency
40
or the hirer done on the ground that—
(a)
being a person entitled to—
(i)
time off under section 57ZA, and
(ii)
remuneration under section 57ZB in respect of that time
off,
45

the agency worker exercised (or proposed to exercise) that right
or received (or sought to receive) that remuneration,

Children and Families Bill
Part 7 — Time off work: ante-natal care etc
109

(b)
being a person entitled to time off under section 57ZG, the
agency worker exercised (or proposed to exercise) that right,
(c)
being a person entitled to—
(i)
time off under section 57ZN, and
(ii)
remuneration under section 57ZO in respect of that time
5
off,

the agency worker exercised (or proposed to exercise) that right
or received (or sought to receive) that remuneration, or
(d)
being a person entitled to time off under section 57ZP, the
agency worker exercised (or proposed to exercise) that right.
10
(6)
Subsection (5) does not apply where the agency worker is an employee.
(7)
In this section the following have the same meaning as in the Agency
Workers Regulations 2010 (S.I. 2010/93)—
“agency worker”;
“hirer”;
15
“temporary work agency”.”
(2)
In section 48 of that Act (complaints to employment tribunals)—
(a)
in subsection (1), for “47C” there is substituted “47C(1)”;
(b)
after subsection (1A) there is inserted—
“(1AA)
An agency worker may present a complaint to an employment
20
tribunal that the agency worker has been subjected to a
detriment in contravention of section 47C(5) by the temporary
work agency or the hirer.”;
(c)
in subsection (2), for “such a complaint” there is substituted “a
complaint under subsection (1), (1ZA), (1A) or (1B)”;
25
(d)
after subsection (2) there is inserted—
“(2A)
On a complaint under subsection (1AA) it is for the temporary
work agency or (as the case may be) the hirer to show the
ground on which any act, or deliberate failure to act, was
done.”;
30
(e)
in subsection (4), after “an employer” there is inserted “, a temporary
work agency or a hirer”;
(f)
after subsection (5) there is inserted—
“(6)
In this section and section 49 the following have the same
meaning as in the Agency Workers Regulations 2010 (S.I. 2010/
35
93)—
“agency worker”;
“hirer”;
“temporary work agency”.”
(3)
In section 49 of that Act (remedies in the case of complaints to an employment
40
tribunal)—
(a)
in subsection (1), for “under section 48” there is substituted “under
section 48(1), (1ZA), (1A) or (1B)”;
(b)
after subsection (1), there is inserted—
“(1A)
Where an employment tribunal finds a complaint under section
45
48(1AA) well-founded, the tribunal—

Children and Families Bill
Part 8 — Right to request flexible working
110

(a)
shall make a declaration to that effect, and
(b)
may make an award of compensation to be paid by the
temporary work agency or (as the case may be) the hirer
to the complainant in respect of the act or failure to act
to which the complaint relates.”
5
100
Time off work for ante-natal care: increased amount of award
(1)
In section 57 of the Employment Rights Act 1996 (complaints to employment
tribunals where time off work for ante-natal care refused to employee), in
subsection (4) (amount of award for unreasonable refusal), for “an amount
equal to” there is substituted “an amount that is twice the amount of”.
10
(2)
In section 57ZC of the Employment Rights Act 1996 (complaints to
employment tribunals where time off work for ante-natal care refused to
agency worker), in subsection (5) (amount of award for unreasonable refusal),
for “an amount equal to” there is substituted “an amount that is twice the
amount of”.
15
Part 8
Right to request flexible working
101
Removal of requirement to be a carer
(1)
In section 80F(1) of the Employment Rights Act 1996 (conditions for exercising
right to request flexible working), paragraph (b) (condition that employee’s
20
purpose be to enable caring for a child or adult) is repealed.
(2)
Section 80F is further amended as follows—
(a)
in subsection (1), the “and” following paragraph (a) is repealed;
(b)
in subsection (2), after paragraph (b) there is inserted “and”;
(c)
in subsection (2), paragraph (d) and the “and” preceding it are repealed;
25
(d)
subsection (10) is repealed.
102
Dealing with applications
(1)
Section 80G of the Employment Rights Act 1996 (employer’s duties in relation
to an application for flexible working) is amended as follows.
(2)
In subsection (1), for paragraph (a) (requirement to deal with application in
30
accordance with regulations) there is substituted—
“(a)
shall deal with the application in a reasonable manner,
(aa)
shall notify the employee of the decision on the application
within the decision period, and”.
(3)
After subsection (1) there is inserted—
35
“(1A)
If an employer allows an employee to appeal a decision to reject an
application, the reference in subsection (1)(aa) to the decision on the
application is a reference to—
(a)
the decision on the appeal, or
(b)
if more than one appeal is allowed, the decision on the final
40
appeal.

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(1B)
For the purposes of subsection (1)(aa) the decision period applicable to
an employee’s application under section 80F is—
(a)
the period of three months beginning with the date on which
the application is made, or
(b)
such longer period as may be agreed by the employer and the
5
employee.
(1C)
An agreement to extend the decision period in a particular case may be
made—
(a)
before it ends, or
(b)
with retrospective effect, before the end of a period of three
10
months beginning with the day after that on which the decision
period that is being extended came to an end.”
(4)
After subsection (1C) (as inserted by subsection (3)) there is inserted—
“(1D)
An application under section 80F is to be treated as having been
withdrawn by the employee if—
15
(a)
the employee without good reason has failed to attend both the
first meeting arranged by the employer to discuss the
application and the next meeting arranged for that purpose, or
(b)
where the employer allows the employee to appeal a decision to
reject an application or to make a further appeal, the employee
20
without good reason has failed to attend both the first meeting
arranged by the employer to discuss the appeal and the next
meeting arranged for that purpose,

and the employer has notified the employee that the employer has
decided to treat that conduct of the employee as a withdrawal of the
25
application.”
(5)
In the Employment Rights Act 1996, the following are repealed—
(a)
section 47E(1)(b);
(b)
section 80G(2) to (4);
(c)
section 80H(4);
30
(d)
in section 80I(4), the words “, and the regulations under that section,”;
(e)
section 104C(1)(b).
103
Complaints to employment tribunals
(1)
Section 80H of the Employment Rights Act 1996 (complaints to employment
tribunals) is amended as follows.
35
(2)
In subsection (1) (grounds of complaint)—
(a)
the “or” after paragraph (a) is repealed;
(b)
after paragraph (b) there is inserted “, or
(c)
that the employer’s notification under section 80G(1D)
was given in circumstances that did not satisfy one of
40
the requirements in section 80G(1D)(a) and (b).”
(3)
In subsection (2) (no complaints under section 80H in respect of an application
disposed of by agreement or withdrawn), for “under this section” there is
substituted “under subsection (1)(a) or (b)”.
(4)
For subsection (3) (no complaints to be made until the employer rejects an
45
application on appeal or contravenes specified regulations under section