Children and Families Bill

Session 2012 - 13
Internet Publications
Other Bills before Parliament

Children and Families Bill

Children and Families Bill
Part 6 — Statutory rights to leave and pay
77

of weeks in respect of which V intends to claim statutory shared
parental pay.
(15)
The conditions are—
(a)
that V has given the person who will be liable to pay statutory
shared parental pay to V notice of—
5
(i)
the extent to which V has exercised an entitlement to
statutory shared parental pay in respect of the child,
(ii)
the extent to which V intends to claim statutory shared
parental pay in respect of the child,
(iii)
the extent to which another person has exercised an
10
entitlement to statutory shared parental pay in respect
of the child, and
(iv)
the extent to which another person intends to claim
statutory shared parental pay in respect of the child;
(b)
that a notice under paragraph (a)—
15
(i)
is given by such time as may be prescribed, and
(ii)
satisfies prescribed conditions as to form and content;
(c)
that the person who is X or, as the case may be, Y in relation to
V consents to that variation.
(16)
A person’s entitlement to statutory shared parental pay under this
20
section is not affected by the placement for adoption of more than one
child as part of the same arrangement.
(17)
Regulations are to provide for entitlement to statutory shared parental
pay in respect of a child placed, or expected to be placed, under section
22C of the Children Act 1989 by a local authority in England with a local
25
authority foster parent who has been approved as a prospective
adopter.
(18)
This section has effect in relation to regulations made by virtue of
subsection (17) as if—
(a)
references to a child being placed for adoption under the law of
30
any part of the United Kingdom were references to being placed
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 placement for adoption were references to
35
placement under section 22C with such a person.
171ZW
Entitlement: general
(1)
Regulations may—
(a)
provide that the following do not have effect, or have effect
subject to prescribed modifications, in such cases as may be
40
prescribed—
(i)
section 171ZU(2)(a) to (o),
(ii)
section 171ZU(4)(a) to (p),
(iii)
section 171ZU(13)(a) and (b),
(iv)
section 171ZU(15)(a) to (c),
45
(v)
section 171ZV(2)(a) to (o),
(vi)
section 171ZV(4)(a) to (p),
(vii)
section 171ZV(13)(a) and (b), and

Children and Families Bill
Part 6 — Statutory rights to leave and pay
78

(viii)
section 171ZV(15)(a) to (c);
(b)
impose requirements about evidence of entitlement and
procedures to be followed;
(c)
specify in what circumstances employment is to be treated as
continuous for the purposes of section 171ZU or 171ZV;
5
(d)
provide that a person is to be treated for the purposes of section
171ZU or 171ZV as being employed for a continuous period of
at least the prescribed period where—
(i)
the person has been employed by the same employer for
at least the prescribed period under two or more
10
separate contracts of service, and
(ii)
those contracts were not continuous;
(e)
provide for amounts earned by a person under separate
contracts of service with the same employer to be aggregated
for the purposes of section 171ZU or 171ZV;
15
(f)
provide that—
(i)
the amount of a person’s earnings for any period, or
(ii)
the amount of the person’s earnings to be treated as
comprised in any payment made to the person or for the
person’s benefit,
20

are to be calculated or estimated for the purposes of section
171ZU or 171ZV in such manner and on such basis as may be
prescribed and that for that purpose payments of a particular
class or description made or falling to be made to or by a person
are, to such extent as may be prescribed, to be disregarded or,
25
as the case may be, to be deducted from the amount of the
person’s earnings.
(2)
The persons upon whom requirements may be imposed by virtue of
subsection (1)(b) include—
(a)
a person who, in connection with another person’s claim to be
30
paid statutory shared parental pay, is required to satisfy
conditions prescribed under section 171ZU(2)(b) or (4)(c) or
171ZV(2)(b) or (4)(c);
(b)
an employer or former employer of such a person.
(3)
In subsection (1)(d) “the prescribed period” means the period of the
35
length prescribed by regulations under section 171ZU(2)(c) or (4)(d) or
171ZV(2)(c) or (4)(d), as the case may be.
171ZX
Liability to make payments
(1)
The liability to make payments of statutory shared parental pay under
section 171ZU or 171ZV is a liability of any person of whom the person
40
entitled to the payments has been an employee as mentioned in section
171ZU(2)(c) or (4)(d) or 171ZV(2)(c) or (4)(d), as the case may be.
(2)
Regulations must make provision as to a former employer’s liability to
pay statutory shared parental pay to a person in any case where the
former employee’s contract of service with the person has been brought
45
to an end by the former employer solely, or mainly, for the purpose of
avoiding liability for statutory shared parental pay.
(3)
The Secretary of State may, with the concurrence of the Commissioners
for Her Majesty’s Revenue and Customs, by regulations specify

Children and Families Bill
Part 6 — Statutory rights to leave and pay
79

circumstances in which, notwithstanding this section, liability to make
payments of statutory shared parental pay is to be a liability of the
Commissioners.
171ZY
Rate and period of pay
(1)
Statutory shared parental pay is payable at such fixed or earnings-
5
related weekly rate as may be prescribed by regulations, which may
prescribe different kinds of rate for different cases.
(2)
Subject to the following provisions of this section, statutory shared
parental pay is payable to a person in respect of each week falling
within a relevant period, up to the number of weeks determined in the
10
case of that person in accordance with regulations under section
171ZU(5) or 171ZV(5).
(3)
Except in such cases as may be prescribed, statutory shared parental
pay is not payable to a person in respect of a week falling within a
relevant period if it is not the person’s intention at the beginning of the
15
week to care for the child by reference to whom the person satisfies—
(a)
the condition in section 171ZU(2)(a) or (4)(a), or
(b)
the condition in section 171ZV(2)(a) or (4)(a).
(4)
Except in such cases as may be prescribed, statutory shared parental
pay is not payable to a person in respect of a week falling within a
20
relevant period during any part of which week the person works for
any employer.
(5)
The Secretary of State may by regulations specify circumstances in
which there is to be no liability to pay statutory shared parental pay in
respect of a week falling within a relevant period.
25
(6)
Where for any purpose of this Part or of regulations it is necessary to
calculate the daily rate of statutory shared parental pay, the amount
payable by way of statutory shared parental pay for any day shall be
taken as one seventh of the weekly rate.
(7)
For the purposes of this section a week falls within a relevant period if
30
it falls within a period specified in a notice under—
(a)
section 171ZU(2)(j), (4)(k) or (13)(a), or
(b)
section 171ZV(2)(j), (4)(k) or (13)(a),

and is not afterwards excluded from such a period by a variation of the
period or periods during which the person in question intends to claim
35
statutory shared parental pay.
(8)
In this section “week”, in relation to a relevant period, means a period
of seven days beginning with the day of the week on which the relevant
period starts.
171ZZ
Restrictions on contracting out
40
(1)
An agreement is void to the extent that it purports—
(a)
to exclude, limit or otherwise modify any provision of this Part,
or
(b)
to require a person to contribute (whether directly or indirectly)
towards any costs incurred by that person’s employer or former
45
employer under this Part.

Children and Families Bill
Part 6 — Statutory rights to leave and pay
80

(2)
For the avoidance of doubt, an agreement between an employer and an
employee, authorising deductions from statutory shared parental pay
which the employer is liable to pay to the employee in respect of any
period, is not void by virtue of subsection (1)(a) if the employer—
(a)
is authorised by that or another agreement to make the same
5
deductions from any contractual remuneration which the
employer is liable to pay in respect of the same period, or
(b)
would be so authorised if the employer were liable to pay
contractual remuneration in respect of that period.
171ZZ1
Relationship with contractual remuneration
10
(1)
Subject to subsections (2) and (3), any entitlement to statutory shared
parental pay is not to affect any right of a person in relation to
remuneration under any contract of service (“contractual
remuneration”).
(2)
Subject to subsection (3)—
15
(a)
any contractual remuneration paid to a person by an employer
of that person in respect of any period is to go towards
discharging any liability of that employer to pay statutory
shared parental pay to that person in respect of that period; and
(b)
any statutory shared parental pay paid by an employer to a
20
person who is an employee of that employer in respect of any
period is to go towards discharging any liability of that
employer to pay contractual remuneration to that person in
respect of that period.
(3)
Regulations may make provision as to payments which are, and those
25
which are not, to be treated as contractual remuneration for the
purposes of subsections (1) and (2).
171ZZ2
Crown employment
The provisions of this Part apply in relation to persons employed by or
under the Crown as they apply in relation to persons employed
30
otherwise than by or under the Crown.
171ZZ3
Special classes of person
(1)
The Secretary of State may with the concurrence of the Treasury make
regulations modifying any provision of this Part in such manner as the
Secretary of State thinks proper in its application to any person who is,
35
has been or is to be—
(a)
employed on board any ship, vessel, hovercraft or aircraft;
(b)
outside Great Britain at any prescribed time or in any
prescribed circumstances; or
(c)
in prescribed employment in connection with continental shelf
40
operations, as defined in section 120(2).
(2)
Regulations under subsection (1) may, in particular, provide—
(a)
for any provision of this Part to apply to any such person,
notwithstanding that it would not otherwise apply;
(b)
for any such provision not to apply to any such person,
45
notwithstanding that it would otherwise apply;

Children and Families Bill
Part 6 — Statutory rights to leave and pay
81

(c)
for excepting any such person from the application of any such
provision where the person neither is domiciled nor has a place
of residence in any part of Great Britain;
(d)
for the taking of evidence, for the purposes of the determination
of any question arising under any such provision, in a country
5
or territory outside Great Britain, by a British consular official or
such other person as may be determined in accordance with the
regulations.
171ZZ4
Part 12ZC: supplementary
(1)
In this Part—
10
“adoption pay period” has the meaning given in section 171ZN(2);
“employer”, in relation to a person who is an employee, means a
person who—
(a)
under section 6 is liable to pay secondary Class 1
contributions in relation to any of the earnings of the
15
person who is an employee, or
(b)
would be liable to pay such contributions but for—
(i)
the condition in section 6(1)(b), or
(ii)
the employee being under the age of 16;
“local authority” has the same meaning as in the Children Act 1989
20
(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);
“maternity allowance period” has the meaning given in section
35(2);
25
“maternity pay period” has the meaning given in section 165(1);
“modifications” includes additions, omissions and amendments,
and related expressions are to be read accordingly;
“prescribed” means prescribed by regulations.
(2)
In this Part “employee” means a person who is gainfully employed in
30
Great Britain either under a contract of service or in an office (including
elective office) with general earnings (as defined by section 7 of the
Income Tax (Earnings and Pensions) Act 2003).
(3)
Regulations may provide—
(a)
for cases where a person who falls within the definition in
35
subsection (2) is not to be treated as an employee for the
purposes of this Part, and
(b)
for cases where a person who would not otherwise be an
employee for the purposes of this Part is to be treated as an
employee for those purposes.
40
(4)
Without prejudice to any other power to make regulations under this
Part, regulations may specify cases in which, for the purposes of this
Part or of such provisions of this Part as may be prescribed—
(a)
two or more employers are to be treated as one;
(b)
two or more contracts of service in respect of which the same
45
person is an employee are to be treated as one.

Children and Families Bill
Part 6 — Statutory rights to leave and pay
82

(5)
In this Part, except where otherwise provided, “week” means a period
of seven days beginning with Sunday or such other period as may be
prescribed in relation to any particular case or class of cases.
(6)
For the purposes of this Part, a person’s normal weekly earnings are,
subject to subsection (8), to be taken to be the average weekly earnings
5
which in the relevant period have been paid to the person or paid for
the person’s benefit under the contract of service with the employer in
question.
(7)
For the purposes of subsection (6) “earnings” and “relevant period”
have the meanings given to them by regulations.
10
(8)
In such cases as may be prescribed, a person’s normal weekly earnings
are to be calculated in accordance with regulations.
(9)
Where—
(a)
in consequence of the establishment of one or more National
Health Service trusts under the National Health Service Act
15
2006, the National Health Service (Wales) Act 2006 or the
National Health Service (Scotland) Act 1978, a person’s contract
of employment is treated by a scheme under any of those Acts
as divided so as to constitute two or more contracts, or
(b)
an order under paragraph 26(1) of Schedule 3 to the National
20
Health Service Act 2006 provides that a person’s contract of
employment is so divided,

regulations may make provision enabling the person to elect for all of
those contracts to be treated as one contract for the purposes of this Part
or such provisions of this Part as may be prescribed.
25
(10)
Regulations under subsection (9) may prescribe—
(a)
the conditions that must be satisfied if a person is to be entitled
to make such an election;
(b)
the manner in which, and the time within which, such an
election is to be made;
30
(c)
the persons to whom, and the manner in which, notice of such
an election is to be given;
(d)
the information which a person who makes such an election is
to provide, and the persons to whom, and the time within
which, the person is to provide it;
35
(e)
the time for which such an election is to have effect;
(f)
which one of the person’s employers under two or more
contracts is to be regarded for the purposes of statutory shared
parental pay as the person’s employer under the contract.
(11)
The powers under subsections (9) and (10) are without prejudice to any
40
other power to make regulations under this Part.
(12)
Regulations under any of subsections (4) to (10) must be made with the
concurrence of the Commissioners for Her Majesty’s Revenue and
Customs.
171ZZ5
Power to apply Part 12ZC
45
(1)
The Secretary of State may by regulations provide for this Part to have
effect in relation to cases which involve adoption, but not the placement

Children and Families Bill
Part 6 — Statutory rights to leave and pay
83

of a child for adoption under the law of any part of the United
Kingdom, with such modifications as the regulations may prescribe.
(2)
The Secretary of State may by regulations provide for this Part to have
effect in relation to cases which involve a person who has applied, or
intends to apply, with another person for a parental order under
5
section 54 of the Human Fertilisation and Embryology Act 2008 and a
child who is, or will be, the subject of the order, with such modifications
as the regulations may prescribe.
(3)
Where section 171ZW(1)(b) has effect in relation to such cases as are
described in subsection (2), regulations under section 171ZW(1)(b) may
10
impose requirements to make statutory declarations as to—
(a)
eligibility to apply for a parental order;
(b)
intention to apply for such an order.”
(2)
In section 176 of the Social Security Contributions and Benefits Act 1992
(Parliamentary control of subordinate legislation), in subsection (1)
15
(affirmative procedure), in paragraph (a), at the appropriate place there is
inserted—
“any of sections 171ZU to 171ZY;”.
90
Exclusion or curtailment of other statutory rights to pay
(1)
The Social Security Contributions and Benefits Act 1992 is amended as follows.
20
(2)
In section 35 (entitlement to maternity allowance), after subsection (3) there is
inserted—
“(3A)
Regulations may provide for the duration of the maternity allowance
period as it applies to a woman to be reduced, subject to prescribed
restrictions and conditions.
25
(3B)
Regulations under subsection (3A) are to secure that the reduced
period ends at a time—
(a)
after a prescribed period beginning with the day on which the
woman is confined, and
(b)
when at least a prescribed part of the maternity allowance
30
period remains unexpired.
(3C)
Regulations under subsection (3A) may, in particular, prescribe
restrictions and conditions relating to—
(a)
the end of the woman’s entitlement to maternity leave;
(b)
the doing of work by the woman;
35
(c)
the taking of prescribed steps by the woman or another person
as regards leave under section 75E of the Employment Rights
Act 1996 in respect of the child;
(d)
the taking of prescribed steps by a person other than the woman
as regards statutory shared parental pay in respect of the child.”
40
(3)
In section 35, after subsection (3C) (inserted by subsection (2)) there is
inserted—
“(3D)
A woman who would, but for the reduction in duration of a maternity
pay period by virtue of section 165(3A), be entitled to statutory