Children and Families Bill

Session 2012 - 13
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Children and Families Bill

Children and Families Bill
Part 6 — Statutory rights to leave and pay
63

(a)
in a case where another person is entitled to leave under section
75G in respect of the child, the amount of such leave taken by
the other person;
(b)
in a case where another person is entitled to statutory shared
parental pay in respect of the child but not leave under section
5
75G, the number of weeks in respect of which such pay is
payable to the other person.
(5)
In reckoning for the purposes of subsection (2) the amount of adoption
leave taken, a part of a week is to be treated as a full week.
(6)
In reckoning for the purposes of subsection (4) the amount of leave
10
under section 75G taken during a period of such leave, a part of a week
is to be treated as a full week.
(7)
Provision under subsection (1)(b) is to secure that leave under section
75G must be taken before the end of such period as may be prescribed
by the regulations.
15
(8)
Regulations under section 75G are to provide for the taking of leave
under section 75G in a single period or in non-consecutive periods.
(9)
Regulations under section 75G may—
(a)
provide for an employer, subject to such restrictions as may be
specified, to require an employee who proposes to take non-
20
consecutive periods of leave under section 75G to take that
amount of leave as a single period of leave, and
(b)
provide for a single period of leave that is so imposed on an
employee to start with a day proposed by the employee or, if no
day is proposed, with the first day of the first period of leave
25
proposed by the employee.
(10)
Regulations under section 75G may provide for the variation, subject to
such restrictions as may be specified, of—
(a)
the period or periods during which an amount of leave under
section 75G is to be taken;
30
(b)
the amount of leave under section 75G that the employee
previously specified in accordance with provision under
section 75G(3)(b) or (6)(b) or subsection (13)(b) of this section.
(11)
Provision under subsection (10)(a) may provide for variation to be
subject to the consent of an employer in circumstances specified by the
35
regulations.
(12)
Provision under subsection (10)(b) may require an employee to satisfy
specified conditions—
(a)
as to giving notice of an intention to vary the amount of leave
under section 75G to be taken by the employee;
40
(b)
if the employee proposes to vary the amount of leave under
section 75G(1) to be taken by the employee, as to the consent of
P to that variation;
(c)
if the employee proposes to vary the amount of leave under
section 75G(4) to be taken by the employee, as to the consent of
45
A to that variation.
(13)
Provision under subsection (12)(a) may require an employee to give
notice to the employer about—

Children and Families Bill
Part 6 — Statutory rights to leave and pay
64

(a)
the extent to which the employee has exercised an entitlement
to leave under section 75G(1) or (4) in respect of the child;
(b)
how much of the entitlement to leave the employee intends to
exercise;
(c)
the extent to which a person other than the employee has
5
exercised an entitlement to leave under section 75G or to
statutory shared parental pay in respect of the child;
(d)
the extent to which a person other than the employee intends to
exercise such an entitlement.
(14)
Regulations under section 75G may—
10
(a)
specify things which are, or are not, to be taken as done for the
purpose of caring for a child;
(b)
make provision excluding the right to be absent on leave under
section 75G in respect of a child where more than one child is
placed for adoption as part of the same arrangement;
15
(c)
specify a minimum amount of leave under section 75G which
may be taken;
(d)
make provision about how leave under section 75G may be
taken;
(e)
specify circumstances in which an employee may work for the
20
employer during a period of leave under section 75G without
bringing the particular period of leave, or the employee’s
entitlement to leave under section 75G, to an end;
(f)
specify circumstances in which an employee may be absent on
leave under section 75G otherwise than for the purpose of
25
caring for a child without bringing the person’s entitlement to
leave under section 75G to an end.
(15)
In this section “week” means any period of seven days.
(16)
The Secretary of State may by regulations provide that the following do
not have effect, or have effect with modifications specified by the
30
regulations, in a case where a person who is taking adoption leave or is
entitled to be paid statutory adoption pay in respect of a child dies
before another person has become entitled to leave under section 75G
in respect of the child—
(a)
section 75G(4)(b), (c) and (e);
35
(b)
section 75G(5);
(c)
section 75G(6)(c);
(d)
subsection (12)(c);
(e)
subsection (13)(c) and (d).
(17)
The Secretary of State may by regulations provide for section 75G and
40
this section to have effect in relation to cases which involve adoption,
but not the placement of a child for adoption under the law of any part
of the United Kingdom, with such modifications as the regulations may
prescribe.
(18)
The Secretary of State may by regulations provide for section 75G and
45
this section to have effect in relation to cases which involve an
employee who has applied, or intends to apply, with another person for
a parental order under section 54 of the Human Fertilisation and

Children and Families Bill
Part 6 — Statutory rights to leave and pay
65

Embryology Act 2008 and a child who is, or will be, the subject of the
order, with such modifications as the regulations may prescribe.
75I
Rights during and after shared parental leave
(1)
Regulations under section 75E or 75G are to provide—
(a)
that an employee who is absent on leave under that section is
5
entitled, for such purposes and to such extent as the regulations
may prescribe, to the benefit of the terms and conditions of
employment which would have applied if the employee had
not been absent;
(b)
that an employee who is absent on leave under that section is
10
bound, for such purposes and to such extent as the regulations
may prescribe, by obligations arising under those terms and
conditions, except in so far as they are inconsistent with section
75E(1) or (4) or 75G(1) or (4), as the case may be; and
(c)
that an employee who is absent on leave under that section is
15
entitled to return from leave to a job of a kind prescribed by the
regulations, subject to section 75J(1).
(2)
In subsection (1)(a) “terms and conditions of employment”—
(a)
includes matters connected with an employee’s employment
whether or not they arise under the employee’s contract of
20
employment, but
(b)
does not include terms and conditions about remuneration.
(3)
The reference in subsection (1)(c) to absence on leave under section 75E
or 75G includes, where appropriate, a reference to a continuous period
of absence attributable partly to leave under one of those sections and
25
partly to any one or more of the following—
(a)
leave under the other of those sections,
(b)
maternity leave,
(c)
paternity leave,
(d)
adoption leave, and
30
(e)
parental leave.
(4)
Regulations under section 75E or 75G may specify matters which are,
or are not, to be treated as remuneration for the purposes of this section.
(5)
Regulations under section 75E or 75G may make provision, in relation
to the right to return mentioned in subsection (1)(c), about—
35
(a)
seniority, pension rights and similar rights;
(b)
terms and conditions of employment on return.
75J
Redundancy and dismissal
(1)
Regulations under section 75E or 75G may make provision about—
(a)
redundancy, or
40
(b)
dismissal (other than by reason of redundancy),

during a period of leave under that section.
(2)
Provision made by virtue of subsection (1) may include—
(a)
provision requiring an employer to offer alternative
employment;
45

Children and Families Bill
Part 6 — Statutory rights to leave and pay
66

(b)
provision for the consequences of failure to comply with the
regulations (which may include provision for a dismissal to be
treated as unfair for the purposes of Part 10).
75K
Chapter 1B: supplemental
(1)
Regulations under section 75E or 75G may—
5
(a)
make provision about notices to be given, evidence to be
produced and other procedures to be followed by—
(i)
employees,
(ii)
employers, and
(iii)
relevant persons;
10
(b)
make provision requiring such persons to keep records;
(c)
make provision for the consequences of failure to give notices,
to produce evidence, to keep records or to comply with other
procedural requirements;
(d)
make provision for the consequences of failure to act in
15
accordance with a notice given by virtue of paragraph (a);
(e)
make special provision for cases where an employee has a right
which corresponds to a right under section 75E or 75G and
which arises under the employee’s contract of employment or
otherwise;
20
(f)
make provision modifying the effect of Chapter 2 of Part 14
(calculation of a week’s pay) in relation to an employee who is
or has been absent from work on leave under section 75E or
75G;
(g)
make provision applying, modifying or excluding an
25
enactment, in such circumstances as may be specified and
subject to any conditions which may be specified, in relation to
a person entitled to take leave under section 75E or 75G.
(2)
In subsection (1) “relevant person” means—
(a)
a person who, in connection with an employee’s claim to be
30
entitled to leave under section 75E or 75G, is required to satisfy
conditions specified in provision under section 75E(2) or (5) or
75G(2) or (5), or
(b)
an employer or former employer of that person.
(3)
Regulations under any of sections 75E to 75H may make different
35
provision for different cases or circumstances.
(4)
Where sections 75G and 75H have effect in relation to such cases as are
described in section 75H(18), regulations under section 75G about
evidence to be produced may require statutory declarations as to—
(a)
eligibility to apply for a parental order;
40
(b)
intention to apply for such an order.”
(2)
In section 236 of the Employment Rights Act 1996 (orders and regulations), in
subsection (3) (affirmative procedure required), after “75A, 75B,” there is
inserted “75E, 75F(16), 75G, 75H(16), (17) or (18)”.
88
Exclusion or curtailment of other statutory rights to leave
45
(1)
The Employment Rights Act 1996 is amended as follows.

Children and Families Bill
Part 6 — Statutory rights to leave and pay
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(2)
In section 71 (ordinary maternity leave)—
(a)
in subsection (3), after paragraph (b) there is inserted—
“(ba)
may allow an employee to bring forward the date on
which an ordinary maternity leave period ends, subject
to prescribed restrictions and subject to satisfying
5
prescribed conditions;
(bb)
may allow an employee in prescribed circumstances to
revoke, or to be treated as revoking, the bringing
forward of that date;”;
(b)
after subsection (3) there is inserted—
10
“(3A)
Provision under subsection (3)(ba) is to secure that an employee
may bring forward the date on which an ordinary maternity
leave period ends only if the employee or another person has
taken, or is taking, prescribed steps as regards leave under
section 75E or statutory shared parental pay in respect of the
15
child.”
(3)
In section 73 (additional maternity leave)—
(a)
in subsection (3)(a), for the words from “to choose” to the end there is
substituted “to bring forward the date on which an additional
maternity leave period ends, subject to prescribed restrictions and
20
subject to satisfying prescribed conditions;”;
(b)
after subsection (3)(a) there is inserted—
“(aa)
may allow an employee in prescribed circumstances to
revoke, or to be treated as revoking, the bringing
forward of that date;”;
25
(c)
after subsection (3) there is inserted—
“(3A)
Provision under subsection (3)(a) is to secure that an employee
may bring forward the date on which an additional maternity
leave period ends only if the employee or another person has
taken, or is taking, prescribed steps as regards leave under
30
section 75E or statutory shared parental pay in respect of the
child.”
(4)
In section 75A (ordinary adoption leave)—
(a)
in subsection (2A), after “subsection (2)” there is inserted “—
(a)
may allow an employee to bring forward the date on
35
which an ordinary adoption leave period ends, subject
to prescribed restrictions and subject to satisfying
prescribed conditions;
(b)
may allow an employee in prescribed circumstances to
revoke, or to be treated as revoking, the bringing
40
forward of that date;”;
(b)
in subsection (2A), the words from “may specify circumstances” to the
end become paragraph (c);
(c)
after subsection (2A) there is inserted—
“(2B)
Provision under subsection (2A)(a) is to secure that an
45
employee may bring forward the date on which an ordinary
adoption leave period ends only if the employee or another
person has taken, or is taking, prescribed steps as regards leave
under section 75G or statutory shared parental pay in respect of
the child.”
50

Children and Families Bill
Part 6 — Statutory rights to leave and pay
68

(5)
In section 75B (additional adoption leave)—
(a)
in subsection (3)(a), for the words from “to choose” to the end there is
substituted “to bring forward the date on which an additional adoption
leave period ends, subject to prescribed restrictions and subject to
satisfying prescribed conditions;”;
5
(b)
after subsection (3)(a) there is inserted—
“(aa)
may allow an employee in prescribed circumstances to
revoke, or to be treated as revoking, the bringing
forward of that date;”;
(c)
after subsection (3) there is inserted—
10
“(3A)
Provision under subsection (3)(a) is to secure that an employee
may bring forward the date on which an additional adoption
leave period ends only if the employee or another person has
taken, or is taking, prescribed steps as regards leave under
section 75G or statutory shared parental pay in respect of the
15
child.”
(6)
In section 80A (entitlement to ordinary paternity leave: birth), after subsection
(4) there is inserted—
“(4A)
Provision under subsection (2)(b) must secure that, once an employee
takes leave under section 75E in respect of a child, the employee may
20
not take leave under this section in respect of the child.”
(7)
In section 80B (entitlement to ordinary paternity leave: adoption), after
subsection (4) there is inserted—
“(4A)
Provision under subsection (2)(b) must secure that, once an employee
takes leave under section 75G in respect of a child, the employee may
25
not take leave under this section in respect of the child.”
Statutory shared parental pay
89
Statutory shared parental pay
(1)
In the Social Security Contributions and Benefits Act 1992, after section 171ZT
there is inserted—
30
“Part 12ZC
Statutory shared parental pay
171ZU
Entitlement: birth
(1)
Regulations may provide that, where all the conditions in subsection
(2) are satisfied in relation to a person who is the mother of a child (“the
35
claimant mother”), the claimant mother is to be entitled in accordance
with the following provisions of this Part to payments to be known as
“statutory shared parental pay”.
(2)
The conditions are—
(a)
that the claimant mother and another person (“P”) satisfy
40
prescribed conditions as to caring or intending to care for the
child;
(b)
that P satisfies prescribed conditions—

Children and Families Bill
Part 6 — Statutory rights to leave and pay
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(i)
as to employment or self-employment,
(ii)
as to having earnings of a prescribed amount for a
prescribed period, and
(iii)
as to relationship either with the child or with the
claimant mother;
5
(c)
that the claimant mother has been in employed earner’s
employment with an employer for a continuous period of at
least the prescribed length ending with a prescribed week;
(d)
that at the end of that prescribed week the claimant mother was
entitled to be in that employment;
10
(e)
that the claimant mother’s normal weekly earnings for a
prescribed period ending with a prescribed week are not less
than the lower earnings limit in force under section 5(1)(a) at the
end of that week;
(f)
if regulations so provide, that the claimant mother continues in
15
employed earner’s employment (whether or not with the
employer by reference to whom the condition in paragraph (c)
is satisfied) until a prescribed time;
(g)
that the claimant mother became entitled to statutory maternity
pay by reference to the birth of the child;
20
(h)
that the claimant mother satisfies prescribed conditions as to the
reduction of the duration of the maternity pay period;
(i)
that the claimant mother has given the person who will be liable
to pay statutory shared parental pay to her notice of—
(i)
the number of weeks in respect of which she would be
25
entitled to claim statutory shared parental pay in respect
of the child if the entitlement were fully exercised
(disregarding for these purposes any intention of P to
claim statutory shared parental pay in respect of the
child),
30
(ii)
the number of weeks in respect of which she intends to
claim statutory shared parental pay, and
(iii)
the number of weeks in respect of which P intends to
claim statutory shared parental pay;
(j)
that the claimant mother has given the person who will be liable
35
to pay statutory shared parental pay to her notice of the period
or periods during which she intends to claim statutory shared
parental pay in respect of the child;
(k)
that a notice under paragraph (i) or (j)—
(i)
is given by such time as may be prescribed, and
40
(ii)
satisfies prescribed conditions as to form and content;
(l)
that P consents to the extent of the claimant mother’s intended
claim for statutory shared parental pay;
(m)
that it is the claimant mother’s intention to care for the child
during each week in respect of which statutory shared parental
45
pay is paid to her;
(n)
that the claimant mother is absent from work during each week
in respect of which statutory shared parental pay is paid to her;
(o)
that, where she is an employee within the meaning of the
Employment Rights Act 1996, the claimant mother’s absence
50
from work during each such week is absence on shared parental
leave.