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Work and Families Bill


Work and Families Bill

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6       

Entitlement to additional statutory paternity pay: birth

After section 171ZE of SSCBA 1992 insert—

“Additional statutory paternity pay

171ZEA  

Entitlement to additional statutory paternity pay: birth

(1)   

The Secretary of State may by regulations provide that, where all the

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conditions in subsection (2) are satisfied in relation to a person (“the

claimant”), the claimant shall be entitled in accordance with the

following provisions of this Part to payments to be known as

“additional statutory paternity pay”.

(2)   

Those conditions are—

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(a)   

that the claimant satisfies prescribed conditions—

(i)   

as to relationship with a child, and

(ii)   

as to relationship with the child’s mother;

(b)   

that the claimant has been in employed earner’s employment

with an employer for a continuous period of at least the

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prescribed length ending with a prescribed week;

(c)   

that the claimant’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;

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(d)   

if regulations so provide, that the claimant continues in

employed earner’s employment (whether or not with that

employer) until a prescribed time;

(e)   

that the mother of the child by reference to whom the condition

in paragraph (a) is satisfied became entitled, by reference to the

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birth of the child—

(i)   

to a maternity allowance, or

(ii)   

to statutory maternity pay;

(f)   

that the mother has, in relation to employment as an employed

or self-employed earner, taken action that is treated by

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regulations as constituting for the purposes of this section her

return to work;

(g)   

that the day on which the mother is treated as returning to work

falls—

(i)   

after the end of a prescribed period beginning with the

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birth of the child, but

(ii)   

at a time when at least a prescribed part of her maternity

allowance period or maternity pay period remains

unexpired;

(h)   

that it is the claimant’s intention to care for the child during a

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period beginning not later than a prescribed time.

(3)   

The regulations may—

(a)   

exclude the application of the conditions mentioned in

paragraphs (f) and (g) of subsection (2) in cases where the

child’s mother has died, and

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(b)   

provide that the condition mentioned in paragraph (e) of that

subsection shall have effect with prescribed modifications in

such cases.

 
 

Work and Families Bill

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(4)   

A person’s entitlement to additional statutory paternity pay under this

section shall not be affected by the birth of more than one child as a

result of the same pregnancy.”

7       

Entitlement to additional statutory paternity pay: adoption

After section 171ZEA of SSCBA 1992 insert—

5

“171ZEB 

Entitlement to additional statutory paternity pay: adoption

(1)   

The Secretary of State may by regulations provide that, where all the

conditions in subsection (2) are satisfied in relation to a person (“the

claimant”), the claimant shall be entitled in accordance with the

following provisions of this Part to payments to be known as

10

“additional statutory adoption pay”.

(2)   

Those conditions are—

(a)   

that the claimant satisfies prescribed conditions—

(i)   

as to relationship with a child who has been placed for

adoption under the law of any part of the United

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Kingdom, and

(ii)   

as to relationship with a person with whom the child is

so placed for adoption (“the adopter”);

(b)   

that the claimant has been in employed earner’s employment

with an employer for a continuous period of at least the

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prescribed length ending with a prescribed week;

(c)   

that the claimant’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;

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(d)   

if regulations so provide, that the claimant continues to work in

employed earner’s employment (whether or not with that

employer) until a prescribed time;

(e)   

that the adopter became entitled to statutory adoption pay by

reference to the placement of the child for adoption;

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(f)   

that the adopter has, in relation to employment as an employed

or self-employed earner, taken action that is treated by

regulations as constituting for the purposes of this section the

adopter’s return to work;

(g)   

that the day on which the adopter is treated as returning to

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work falls—

(i)   

after the end of a prescribed period beginning with the

placement of the child for adoption, but

(ii)   

at a time when at least a prescribed part of the adopter’s

adoption pay period remains unexpired;

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(h)   

that it is the claimant’s intention to care for the child during a

period beginning not later than a prescribed time.

(3)   

The regulations may—

(a)   

exclude the application of the conditions mentioned in

paragraphs (f) and (g) of subsection (2) in cases where the

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adopter has died, and

 
 

Work and Families Bill

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(b)   

provide that the condition mentioned in paragraph (e) of that

subsection shall have effect with prescribed modifications in

such cases.

(4)   

A person may not elect to receive additional statutory paternity pay if

he has elected in accordance with section 171ZL to receive statutory

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adoption pay.

(5)   

A person’s entitlement to additional statutory paternity pay under this

section shall not be affected by the placement for adoption of more than

one child as part of the same arrangement.”

8       

Entitlement to additional statutory paternity pay: general

10

After section 171ZEB of SSCBA 1992 insert—

“171ZEC 

Entitlement to additional statutory paternity pay: general

(1)   

A person shall not be entitled to payments of additional statutory

paternity pay in respect of any period unless—

(a)   

he gives the person who will be liable to pay it notice of the date

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from which he expects the liability to pay him additional

statutory paternity pay to begin and the date on which he

expects that liability to end; and

(b)   

the notice is given by such time as may be prescribed.

(2)   

The notice shall be in writing if the person who is liable to pay the

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additional statutory paternity pay so requests.

(3)   

The Secretary of State may by regulations—

(a)   

provide that the conditions mentioned in subsection (2)(b) or (c)

of section 171ZEA or 171ZEB shall have effect subject to

prescribed modifications in such cases as may be prescribed;

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(b)   

provide that subsection (1) of this section shall not have effect,

or shall have effect subject to prescribed modifications, in such

cases as may be prescribed;

(c)   

impose requirements about evidence of entitlement;

(d)   

specify in what circumstances employment is to be treated as

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continuous for the purposes of section 171ZEA or 171ZEB;

(e)   

provide that a person is to be treated for the purposes of section

171ZEA or 171ZEB as being employed for a continuous period

of the length prescribed under that section where—

(i)   

he has been employed by the same employer for a

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period of at least that length under two or more

contracts of service, and

(ii)   

those contracts were not continuous;

(f)   

provide for amounts earned by a person under separate

contracts of service with the same employer to be aggregated

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for the purposes of section 171ZEA or 171ZEB;

(g)   

provide that—

(i)   

the amount of a person’s earnings for any period, or

(ii)   

the amount of his earnings to be treated as comprised in

any payment made to him or for his benefit,

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shall be calculated or estimated for the purposes of section

171ZEA or 171ZEB in such manner and on such basis as may be

 
 

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prescribed and that for that purpose payments of a particular

class or description made or falling to be made to or by a person

shall, to such extent as may be prescribed, be disregarded or, as

the case may be, be deducted from the amount of his earnings.”

9       

Liability to make payments of additional statutory paternity pay

5

After section 171ZEC of SSCBA 1992 insert—

“171ZED 

Liability to make payments of additional statutory paternity pay

(1)   

The liability to make payments of additional statutory paternity pay

under section 171ZEA or 171ZEB is a liability of any person of whom

the person entitled to the payments has been an employee as

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mentioned in subsection (2)(b) of that section.

(2)   

Regulations shall make provision as to a former employer’s liability to

pay additional statutory paternity pay to a person in any case where the

former employee’s contract of service with him has been brought to an

end solely, or mainly, for the purpose of avoiding liability for

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additional statutory paternity pay or ordinary statutory paternity pay,

or both.

(3)   

The Secretary of State may, with the concurrence of the Commissioners

for Her Majesty’s Revenue and Customs, by regulations specify

circumstances in which, notwithstanding this section, liability to make

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payments of additional statutory paternity pay is to be a liability of the

Commissioners.”

10      

Additional statutory paternity pay: rate and period of pay

After section 171ZED of SSCBA 1992 insert—

“171ZEE 

Rate and period of pay: additional statutory paternity pay

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(1)   

Additional statutory paternity pay shall be payable at such fixed or

earnings-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, additional statutory

paternity pay shall be payable in respect of a period (“the additional

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paternity pay period”)—

(a)   

beginning with such day as may (subject to subsection (3)) be

determined in accordance with regulations, and

(b)   

ending with—

(i)   

the day on which the additional statutory pay period is

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ended by virtue of subsection (4) or (8), or

(ii)   

such earlier day as the employee may choose in

accordance with regulations.

(3)   

The first day of the additional paternity pay period must not be earlier

than the day on which the child’s mother or the person with whom the

40

child is placed for adoption (“the mother or adopter”) is treated for the

purpose of section 171ZEA or 171ZEB as returning to work; but this

subsection does not apply in a case where the mother or adopter has

died.

 
 

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(4)   

The additional paternity pay period—

(a)   

shall not last longer than any prescribed number of weeks,

(b)   

shall not continue after the end of the period of 12 months

beginning with the relevant date, and

(c)   

shall not continue after the end—

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(i)   

in a case falling within section 171ZEA, of the mother’s

maternity allowance period or maternity pay period, or

(ii)   

in a case falling within section 171ZEB, of the adoption

pay period of the person with whom the child is placed

for adoption.

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(5)   

In subsection (4)(b), “the relevant date” means—

(a)   

in the case of a person to whom the conditions in section

171ZEA(2) apply, the date of the child’s birth (or, where more

than one child is born as a result of the same pregnancy, the date

of birth of the first child born as a result of the pregnancy), and

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(b)   

in the case of a person to whom the conditions in section

171ZEB(2) apply, the date of the child’s placement for adoption

(or, where more than one child is placed for adoption as part of

the same arrangement, the date of placement of the first child to

be placed as part of the arrangement).

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(6)   

Additional statutory paternity pay shall not be payable to a person in

respect of a week if it is not his purpose at the beginning of the week to

care for the child by reference to whom he satisfies the condition in sub-

paragraph (i) of section 171ZEA(2)(a) or 171ZEB(2)(a).

(7)   

Except in such cases as may be prescribed, additional statutory

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paternity pay shall not be payable to a person in respect of a week

during any part of which he works for any employer.

(8)   

Where subsection (6) or (7) prevents additional statutory paternity pay

being payable to a person in respect of any week, the person’s

additional paternity pay period shall be taken to have ended at the end

30

of the previous week.

(9)   

Where for any purpose of this Part of this Act or of regulations it is

necessary to calculate the daily rate of additional statutory paternity

pay, the amount payable by way of additional statutory paternity pay

for that day shall be taken to be one seventh of the weekly rate.

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(10)   

In this section “week” means a period of seven days beginning with the

day of the week on which the additional paternity pay period began.”

Leave and pay related to birth or adoption: further amendments

11      

Leave and pay related to birth or adoption: further amendments

(1)   

Schedule 1 (which contains further amendments relating to statutory leave and pay)

40

has effect.

(2)   

Any reference to statutory paternity pay in any instrument or document made

before the commencement of paragraphs 12 and 13 of Schedule 1 is to be read,

in relation to any time after that commencement, as a reference to ordinary

statutory paternity pay.

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(3)   

Any reference to ordinary statutory paternity pay in any enactment (including

this Act and any enactment amended by this Act) or any instrument or

document is to be read, in relation to any time before the commencement of

paragraphs 12 and 13 of Schedule 1, as a reference to statutory paternity pay.

Miscellaneous provisions about employment rights

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12      

Flexible working

(1)   

Section 80F of ERA 1996 (statutory right to request contract variation) is

amended as follows.

(2)   

In subsection (1), for paragraph (b) substitute—

“(b)   

his purpose in applying for the change is to enable him to care

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for someone who, at the time of application, is—

(i)   

a child who has not reached the prescribed age or falls

within a prescribed description and in respect of whom

(in either case) the employee satisfies prescribed

conditions as to relationship, or

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(ii)   

a person aged 18 or over who falls within a prescribed

description and in respect of whom the employee

satisfies prescribed conditions as to relationship.”

(3)   

In subsection (2)(d), for the words from “child” to the end substitute “child or

other person to be cared for, the conditions as to relationship mentioned in

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subsection (1)(b)(i) or (ii)”.

(4)   

Omit subsections (3), (6) and (7).

(5)   

After subsection (8) insert—

“(9)   

Regulations under this section may make different provision for

different cases.

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(10)   

In this section—

“child” means a person aged under 18;

“prescribed” means prescribed by regulations made by the

Secretary of State.”

13      

Annual leave

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(1)   

The Secretary of State may by regulations make provision conferring on

workers the right, except in prescribed cases, to a prescribed amount of annual

leave in each leave year, as defined for the purposes of the regulations.

(2)   

The regulations may in particular—

(a)   

make provision for determining the amount of annual leave to which

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workers are to be entitled;

(b)   

make provision for determining the amount of pay in respect of any

period of leave which is required by the regulations to be paid leave;

(c)   

make provision enabling a worker to elect when to take leave to which

he is entitled by virtue of the regulations, subject to any provision of the

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regulations enabling his employer to require him to take, or not to take,

that leave at a particular time;

 
 

Work and Families Bill

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(d)   

make provision for the payment of compensation in prescribed cases to

a worker who has not taken leave to which he is entitled;

(e)   

make provision as to the relationship between the rights conferred by

the regulations and a worker’s rights to leave, pay or compensation

under any contract or under any Act or subordinate legislation;

5

(f)   

enable a worker to present a complaint to an employment tribunal that

his employer has refused to permit him to exercise any right he has

under the regulations, or has failed to pay him any amount due to him

under the regulations;

(g)   

make, in connection with any right conferred by the regulations

10

(including any right to payment), any other provision which is the

same as or similar to any provision made, in connection with any right

relating to annual leave conferred in pursuance of any Community

obligation, by any regulations under section 2(2) of the 1972 Act made

at any time before the day on which the first regulations under this

15

section are made.

(3)   

Regulations under this section may make provision as to—

(a)   

who is to be treated as a worker for the purposes of the regulations, and

(b)   

who is to be treated as the worker’s employer.

(4)   

Regulations under this section may in particular—

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(a)   

make provision applying to—

(i)   

Crown employment and persons in Crown employment;

(ii)   

service as a member of the armed forces;

(b)   

make provision conferring rights to and in connection with annual

leave on persons falling within any other categories of persons on

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whom any Community obligation of the United Kingdom requires a

right to annual leave to be conferred.

(5)   

Regulations under this section—

(a)   

are to be made by statutory instrument;

(b)   

may make different provision for different cases;

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(c)   

may contain incidental, supplemental, consequential, transitional or

saving provision, including provision amending any Act or

subordinate legislation.

(6)   

No statutory instrument containing regulations under this section may be

made unless a draft of the instrument has been laid before, and approved by a

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resolution of, each House of Parliament.

(7)   

In this section—

“the 1972 Act” means the European Communities Act 1972 (c. 68);

“the armed forces” means any of the naval, military or air forces of the

Crown;

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“Crown employment” has the meaning given by section 191(3) of ERA

1996;

“subordinate legislation” has the same meaning as in the Interpretation

Act 1978 (c. 30).

14      

Increase of maximum amount of a week’s pay for certain purposes

45

(1)   

This section applies to the sums specified in the following provisions—

 
 

 
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Revised 19 October 2005