Work and Families Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Work and Families Bill

Work and Families Bill
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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
5
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
15
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
25
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
30
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
35
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
40
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.

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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.”
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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 paternity 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
15
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
20
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

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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
5
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.”
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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.”
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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
20
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
25
(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
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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
40
pay) 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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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
10
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.”
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Annual leave
30
(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;

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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;
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(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
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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
25
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).
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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—