Children and Families Bill (HL Bill 59)

practicable for the complaint to be presented before the end of
that period of three months.

(3) Sections 207A(3) and 207B apply for the purposes of subsection (2)(a).

(4) Where an employment tribunal finds a complaint under subsection (1)
5well-founded, it must make a declaration to that effect.

(5) If the complaint is that the employer has unreasonably refused to let the
employee take time off as required by section 57ZJ, the tribunal must
also order the employer to pay to the employee an amount that is twice
the amount of the remuneration to which the employee would have
10been entitled under section 57ZK if the employer had not refused.

(6) If the complaint is that the employer has failed to pay the employee the
whole or part of any amount to which the employee is entitled under
section 57ZK, the tribunal must also order the employer to pay to the
employee the amount which it finds due to the employee.

(7) 15If the complaint is that the employer has unreasonably refused to let the
employee take time off as required by section 57ZL, the tribunal must
also order the employer to pay to the employee an amount determined
in accordance with subsection (8).

(8) The amount payable to the employee is—

20A x B x 2

where—

(a) A is the appropriate hourly rate for the employee determined in
accordance with section 57ZK(2) to (4), and

(b) B is the number of working hours for which the employee
25would have been entitled under section 57ZL to be absent if the
time off had not been refused.

Adoption appointments: agency workers

57ZN Right to paid time off to attend adoption appointments: agency
workers

(1) 30An agency worker who has been notified by an adoption agency that a
child is to be, or is expected to be, placed for adoption with the agency
worker alone is entitled to be permitted by the temporary work agency
and the hirer to take time off during the agency worker’s working
hours in order that he or she may attend by appointment at any place
35for the purpose of having contact with the child or for any other
purpose connected with the adoption.

(2) An agency worker who—

(a) has been notified by an adoption agency that a child is to be, or
is expected to be, placed for adoption with the agency worker
40and another person jointly, and

(b) has elected to exercise the right to take time off under this
section in connection with the adoption,

is entitled to be permitted by the temporary work agency and the hirer
to take time off during the agency worker’s working hours in order that
45he or she may attend by appointment at any place for the purpose of

having contact with the child or for any other purpose connected with
the adoption.

(3) An agency worker may not make an election for the purposes of
subsection (2)(b) if—

(a) 5the agency worker has made an election for the purposes of
section 57ZP(1)(b) in connection with the adoption, or

(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 (2)(b) or section 57ZJ(2)(b) in connection with the
10adoption.

(4) An agency worker is not entitled to take time off under this section on
or after the date of the child’s placement for adoption with the agency
worker.

(5) In relation to any particular adoption, an agency worker is not entitled
15to take time off under this section on more than five occasions.

(6) On each of those occasions, the maximum time off during working
hours to which the agency worker is entitled is six and a half hours.

(7) 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
20adoption agency which made the notification described in subsection
(1) or (2)(a).

(8) An agency worker is not entitled to take time off under subsection (1)
unless, if the temporary work agency or the hirer requests it, the agency
worker gives that person a document showing the date and time of the
25appointment in question and that it has been arranged as described in
subsection (7).

(9) An agency worker is not entitled to take time off under subsection (2)
unless, if the temporary work agency or the hirer requests it, the agency
worker gives that person—

(a) 30a declaration signed by the agency worker stating that the
agency worker has made an election for the purposes of
subsection (2)(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
35subsection (7).

(10) A document or declaration requested under subsection (8) or (9) may
be given in electronic form.

(11) In cases where more than one child is to be, or is expected to be, placed
for adoption with an agency worker as part of the same arrangement,
40this section has effect as if—

(a) the purposes specified in subsections (1) and (2) were the
purpose of 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) 45the references in subsections (2)(b) and (9)(a) to the adoption
were references to all of the adoptions that are part of the
arrangement;

(c) the references in subsection (3) to the adoption were references
to any of the adoptions that are part of the arrangement;

(d) the reference in subsection (4) to the date of the child’s
placement for adoption were a reference to the date of
5placement of the first child to be placed as part of the
arrangement;

(e) the reference in subsection (5) to a particular adoption were a
reference to the adoptions that are part of a particular
arrangement.

(d)(d)10the reference in subsection (4) to the date of the child’s
placement for adoption were a reference to the date of
placement of the first child to be placed as part of the
arrangement;

(e) the reference in subsection (5) to a particular adoption were a
15reference to the adoptions that are part of a particular
arrangement.

(12) 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
20supervision and direction of the hirer, the agency worker is required to
be at work.

(13) 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 in section 119(1)(a) of the Adoption and Children (Scotland)
25Act 2007.

57ZO Right to remuneration for time off under section 57ZN

(1) An agency worker who is permitted to take time off under section
57ZN is entitled to be paid remuneration by the temporary work
agency for the number of working hours for which the agency worker
30is entitled to be absent at the appropriate hourly rate.

(2) The appropriate hourly rate, in relation to an agency worker, is the
amount of one week’s pay divided by the number of normal working
hours in a week for that agency worker in accordance with the terms
under which the agency worker works temporarily for and under the
35supervision and direction of the hirer that are in force on the day when
the time off is taken.

(3) But where the number of normal working hours during the assignment
differs from week to week or over a longer period, the amount of one
week’s pay shall be divided instead by the average number of normal
40working hours calculated by dividing by twelve the total number of the
agency worker’s normal working hours during the period of twelve
weeks ending with the last complete week before the day on which the
time off is taken.

(4) A right to any amount under subsection (1) does not affect any right of
45an agency worker in relation to remuneration under the agency
worker’s contract with the temporary work agency (“contractual
remuneration”).

(5) Any contractual remuneration paid to an agency worker in respect of a
period of time off under section 57ZN goes towards discharging any
50liability of the temporary work agency to pay remuneration under
subsection (1) in respect of that period.

(6) Any payment of remuneration under subsection (1) in respect of a
period of time off under section 57ZN goes towards discharging any
liability of the temporary work agency to pay contractual remuneration
55in respect of that period.

57ZP Right to unpaid time off to attend adoption meetings: agency workers

(1) An agency worker who—

(a) has been notified by an adoption agency that a child is to be, or
is expected to be, placed for adoption with the agency worker
5and another person jointly, and

(b) has elected to exercise the right to take time off under this
section in connection with the adoption,

is entitled to be permitted by the temporary work agency and the hirer
to take time off during the agency worker’s working hours in order that
10he or she may attend by appointment at any place for the purpose of
having contact with the child or for any other purpose connected with
the adoption.

(2) An agency worker may not make an election for the purposes of
subsection (1)(b) if—

(a) 15the agency worker has made an election for the purposes of
section 57ZN(2)(b) in connection with the adoption, or

(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
20adoption.

(3) An agency worker is not entitled to take time off under this section on
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
25to take time off under this section on more than two occasions.

(5) On each of those occasions, the maximum time off during working
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
30adoption agency which made the notification described in subsection
(1)(a).

(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) 35a declaration signed by the agency worker stating that the
agency worker has made an election for the purposes of
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
40subsection (6).

(8) A declaration or document requested under subsection (7) may be
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
45of the same arrangement, this section has effect as if—

(a) the purposes specified in subsection (1) were the purpose of
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
5arrangement;

(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
10placement 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.

(d)(d)15the reference in subsection (3) to the date of the child’s
placement for adoption were a reference to the date of
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
20reference to the adoptions that are part of a particular
arrangement.

(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
25supervision 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)
30Act 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
35required 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
40required 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

(b) 45within 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).

(5) 50Where 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
55worker 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
5worker 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
10by 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—

(a) 15A 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.

(10) 20Where 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
25complaint 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—

(a) 30has not completed the qualifying period, or

(b) pursuant to regulation 8(a) or (b) of the Agency Workers
Regulations 2010 (S.I. 2010/93S.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
35temporary 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
40meaning as in the Agency Workers Regulations 2010—

• “agency worker”;

• “assignment”;

• “hirer”;

• “qualifying period”;

• 45“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

(b) 5who 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—

(a) 10references 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
15child under section 22C of that Act with a local authority foster
parent who has been approved as a prospective adopter;

(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
20a local authority foster parent who has been approved as a prospective
adopter, notification of that person by an adoption agency during that
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) 25In the Employment Rights Act 1996—

(a) in section 47C (right not to be subject to detriment: leave for family
reasons), in subsection (2) (prescribed reasons), after paragraph (aa) (as
inserted by section 106(2)(a)) there is inserted—

“(ab) time off under section 57ZJ or 57ZL,”;

(b) 30in section 80B (entitlement to ordinary paternity leave: adoption), in
subsection (5) (provision that may be made in regulations under
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
35exercised a right to take time off under section 57ZJ;”;

(c) in section 99 (being regarded as unfairly dismissed: leave for family
reasons), in subsection (3) (prescribed reasons), after paragraph (aa) (as
inserted by section 106(2)(b)) there is inserted—

“(ab) time off under section 57ZJ or 57ZL,”;

(d) 40in section 225 (the calculation date in finding a week’s pay), after
subsection (3A) (as inserted by section 106(2)(c)) there is inserted—

“(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
45place there is inserted—

• ““local authority”, in relation to the placement of children
  under section 22C of the Children Act 1989, has the same
  meaning as in that Act (see section 105(1) of that Act);”;

Children and Families BillPage 117

• ““local authority foster parent” has the same meaning as in
  the Children Act 1989 (see section 22C(12) of that Act);”.

108 Right not to be subjected to detriment: agency workers

(1) In section 47C of the Employment Rights Act 1996 (right not to be subjected to
5detriment 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
or the hirer done on the ground that—

(a) 10being a person entitled to—

(i) time off under section 57ZA, and

(ii) remuneration under section 57ZB in respect of that time
off,

the agency worker exercised (or proposed to exercise) that right
15or received (or sought to receive) that remuneration,

(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) 20remuneration under section 57ZO in respect of that time
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
25agency worker exercised (or proposed to exercise) that right.

(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. 2010/93S.I. 2010/93)—

• “agency worker”;

• 30“hirer”;

• “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) 35An agency worker may present a complaint to an employment
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
40complaint under subsection (1), (1ZA), (1A) or (1B)”;

(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
45done.”;

(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
5meaning as in the Agency Workers Regulations 2010 (S.I. 2010/
93)—

• “agency worker”;

• “hirer”;

• “temporary work agency”.”

(3) 10In section 49 of that Act (remedies in the case of complaints to an employment
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) 15Where an employment tribunal finds a complaint under section
48(1AA) well-founded, the tribunal—

(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
20to the complainant in respect of the act or failure to act
to which the complaint relates.”

109 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
25subsection (4) (amount of award for unreasonable refusal), for “an amount
equal to” there is substituted “an amount that is twice the amount of”.

(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),
30for “an amount equal to” there is substituted “an amount that is twice the
amount of”.

Part 9 Right to request flexible working

110 Removal of requirement to be a carer

(1) 35In section 80F(1) of the Employment Rights Act 1996 (conditions for exercising
right to request flexible working), paragraph (b) (condition that employee’s
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) 40in subsection (2), after paragraph (b) there is inserted “and”;

(c) in subsection (2), paragraph (d) and the “and” preceding it are repealed;

(d) subsection (10) is repealed.

111 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
5accordance 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—

“(1A) 10If 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
15appeal.

(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) 20such longer period as may be agreed by the employer and the
employee.

(1C) An agreement to extend the decision period in a particular case may be
made—

(a) before it ends, or

(b) 25with retrospective effect, before the end of a period of three
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
30withdrawn by the employee if—

(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
35reject an application or to make a further appeal, the employee
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
40decided to treat that conduct of the employee as a withdrawal of the
application.”

(5) In the Employment Rights Act 1996, the following are repealed—

(a) section 47E(1)(b);

(b) section 80G(2) to (4);

(c) 45section 80H(4);

(d) in section 80I(4), the words “, and the regulations under that section,”;