Work and Families Bill - Explanatory and Financial Memorandum as Introduced

INTRODUCTION

1. This Explanatory and Financial Memorandum has been prepared by the Department for Employment and Learning in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or schedule does not seem to require an explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. Statutory paid and unpaid leave for working parents, as well as the right to request flexible working, currently operate in Northern Ireland in the same way as in Great Britain. Administration of certain aspects of paid leave is carried out across both Great Britain and Northern Ireland by Her Majesty’s Revenue and Customs (“HMRC”). As entitlements have developed over time, stakeholders in Northern Ireland have generally expressed support for the continuation of these arrangements.

4. It has been appropriate to evaluate whether this should continue to be the position in light of the United Kingdom Government’s commitment to introduce in Great Britain new entitlements for working parents. These include the right to share statutory pay and leave following the birth or adoption of a child and extension to all employees with appropriate length of service of the right to request flexible working. The Department for Employment and Learning (“the Department”) therefore, following Executive agreement, took forward public consultation seeking the views of stakeholders on this important question.

5. The Work and Families Bill takes forward the findings of that consultation. It provides a legislative framework enabling Northern Ireland leave and pay entitlements to continue to match those available to working parents in Great Britain. The Bill also facilitates extension of the right to request flexible working to all employees with appropriate service. Finally, the Bill introduces a minor technical amendment in support of a programme, developed as part of the Department’s employment law review, to consolidate working time regulations.

CONSULTATION

6. Public consultation explaining the Great Britain proposals and asking whether it would be appropriate to take forward comparable measures in Northern Ireland took place between 6 June and 23 August 2013.

7. The consultation asked for views on the merits of the Great Britain programme; the extent (if any) to which it should be implemented in Northern Ireland; and whether alternative options would be appropriate. As well as dealing with these broad policy questions, the consultation invited specific input on the administration of new systems, if introduced.

8. There were 28 substantive responses to the consultation. There was substantial support for the introduction of rights to leave and pay for Northern Ireland’s working parents corresponding to the entitlements being brought forward in Great Britain. There was also strong support for extending the right to request flexible working to all employees having an appropriate length of service with their employer, although there were reservations about the proposed move away from a statutory process for making requests to a code of practice and guidance led approach.

9. The technical amendment contained in the Bill, which is designed to facilitate consolidation of working time regulations, has been the subject of separate detailed engagement with an expert stakeholder group consisting of representatives from business and the trade union movement. The initiative is strongly supported.

OPTIONS CONSIDERED

10. The first policy option considered by the Department was to retain unchanged the present leave, pay and/or flexible working arrangements, making such minor legislative amendments as necessary to support that objective. This option would have preserved familiar systems at the expense of unquantified residual costs to HMRC in developing and operating parallel systems for Great Britain and Northern Ireland. This option received no substantive support from stakeholders and has been discounted.

11. The second option was to develop pay, leave and/or flexible working arrangements bespoke to Northern Ireland. Although the consultation did not make any specific alternative proposals concerning leave and pay, it did ask for stakeholder input on available options. None were identified. In relation to flexible working, however, a majority of consultees indicated that they would not welcome in Northern Ireland the Great Britain policy whereby flexible working requests will be governed by a code of practice and supporting guidance rather than, as at present, a statute based procedure. The Department has reflected this feedback in preparing the Bill, which consequently makes no provision for moving away from a statutory process. Although the switch to a code of practice and guidance could have achieved modest annual savings to employers in procedural costs, on balance the Department has reached the view that a statutory process should be preserved as it enjoys significant support, is familiar to employers and affords greater certainty than the alternative.

12. The third option available to the Department was to provide the same leave, pay and/or flexible working entitlements as are to be introduced in Great Britain. Other than in relation to flexible working, as discussed above, this approach has been substantially supported and it is the approach adopted in the Bill.

13. In relation to the technical working time amendment, options were limited to including or not including provision in the Bill. As the amendment’s omission would render procedurally problematic the objective, which is supported by stakeholders, of making a single consolidated set of working time regulations, the amendment has been included in the Bill. No particular costs are associated with either option, but the benefits of consolidating working time provisions, in terms of better regulation, are clear to stakeholders and the Department.

OVERVIEW

14. The Bill sets out a legislative framework allowing for the voluntary sharing of leave and pay entitlement between parents following the birth or adoption of a child (shared parental leave and pay). It goes on to make consequential adjustments to other rights for working parents to ensure that they appropriately interface with the new provisions. It also abolishes the right to additional paternity leave and pay, which the new system replaces and builds upon.

15. Provision is made allowing foster parents who are a child’s intended adoptive parents to access adoption pay and leave, and intended parents in surrogacy arrangements to avail of paternity and adoption leave and pay.

16. The Bill provides for statutory adoption pay to be paid at 90% of earnings for the first six weeks. It also facilitates paid time off work for primary adopters to attend up to five introductory meetings before a child is placed with them for adoption; and unpaid time off for secondary adopters to attend two such meetings. A similar right to take unpaid time of work is provided for the partners of new mothers to attend ante-natal appointments.

17. The Bill facilitates extension of the current right to request flexible working to all employees having an appropriate length of service with their employer.

18. Finally, it makes a technical amendment facilitating work to consolidate regulations dealing with working time.

COMMENTARY ON CLAUSES

Clause 1: Defined expressions in this Act

Clause 1 provides appropriate definitions of the expressions used throughout the Bill to address potential ambiguity of interpretation.

PART 2: SHARED RIGHTS TO LEAVE AND PAY

Clause 2: Shared parental leave

Clause 2 inserts a new Chapter 1B into Part 9 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”). This creates a new entitlement for employees to be absent from work on shared parental leave for the purposes of caring for a child. 

Article 107E: Entitlement to shared parental leave: birth

Paragraphs (1) and (4) confer powers on the Department to make regulations entitling employees to be absent from work on leave for the purpose of caring for a child if they satisfy certain specified conditions. 

Paragraphs (1) to (3) are about the conditions for eligibility of the mother of the child. The conditions that may be specified include conditions as to duration of employment, the mother's relationship with the child and as to caring with another person (“P”) for the child. Paragraph (1)(f) includes a condition relating to the giving of notice of intention to take shared parental leave; and paragraph (3) specifies what this notice may be required to be about. It may be about the amount of leave available to the mother; the amount of leave the mother intends to take; and whether and to what extent P will take leave or statutory shared parental pay. Paragraph (1)(g) specifies a condition relating to the consent of P to the amount of leave that the mother intends to take.

Paragraph (2) provides that the conditions of entitlement of the mother can include P meeting conditions in respect of P’s employment or self-employment, P’s earnings, P’s relationship to the mother or the child and P’s intention to care, with the mother, for the child. The effect of this provision is that one of the conditions of entitlement to shared parental leave for the mother can relate to the mother’s sharing the care of the child with P and P satisfying conditions as to economic activity and relationship with the child or the mother.

Paragraph (4) specifies conditions that may be included in regulations to give entitlement to shared parental leave for another employee (the father or the mother’s partner). These include certain conditions as to duration of employment, the employee’s relationship with the child or with the child’s mother and as to the employee caring, with the child’s mother, for the child. Paragraph (4)(d) includes a condition relating to the giving of a notice of intention to take shared parental leave. Paragraph (4)(e) specifies a condition relating to the child’s mother’s consent to the amount of shared parental leave the employee intends to take.

Paragraph (5) provides that the conditions of entitlement for the employee can include the mother meeting conditions as to her employment or self-employment, her earnings, her caring with the employee for the child and her entitlement (or otherwise) to statutory maternity pay or maternity allowance and the exercise of these entitlements. The effect of this provision is that one of the conditions of entitlement to shared parental leave for an employee (the father or the mother’s partner) can relate to the employee sharing care of the child with the mother and to the mother satisfying conditions as to economic activity.

Paragraph (6) specifies what the notice the employee is required to give under paragraph (4) is about. It may be required to be about the amount of leave available to the employee, the amount of leave the employee intends to take, and whether and to what extent the mother will take leave or shared parental pay.

Article 107F: Entitlement to leave under Article 107E: further provision

Article 107F is about the making of regulations to calculate the amount of shared parental leave available to an employee, to limit the amount of leave, to limit when it may be taken, to require the leave to be taken as a single period and to provide for the varying of the amount of shared parental leave that an employee may take and the times at which an employee takes this leave.

Paragraph (1) provides for regulations to determine the amount of shared parental leave and when it may be taken. In accordance with paragraph (8), provision must be made for the taking of shared parental leave in a single period or in non-consecutive periods.  The effect of this is to allow the leave to be taken more flexibly than in a single consecutive block.

Paragraph (2) deals with the maximum amount of shared parental leave as it relates to maternity leave and pay. This will be specified by regulations and is expected to be the total length of maternity leave (52 weeks) less the amount of maternity leave taken by the mother (where she returns to work without taking specified action to reduce her maternity leave period) or the amount by which the maternity leave period has been reduced. Where a mother is entitled to statutory maternity pay or maternity allowance only, the maximum amount of shared parental leave is again to be specified by regulations, and is expected to be 52 weeks less the number of weeks of statutory maternity pay or maternity allowance payable to the child’s mother, or the number of weeks by which the maternity allowance period or maternity pay period has been reduced.

In accordance with paragraph (4), the amount of shared parental leave to which an employee is entitled in respect of a child takes into account the amount of such leave taken by another person in respect of that child or the number of weeks of statutory shared parental pay received by another person in respect of that child (in the case where the other person is entitled to statutory shared parental pay in respect of the child but not to shared parental leave).

Paragraph (7) ensures that shared parental leave must be taken before the end a period that may be specified.

Paragraph (9) provides that the regulations may enable an employer, in a case where an employee has proposed to take non-consecutive periods of shared parental leave, to require the employee to take that amount of leave as a single period of leave. This single period may start with a day proposed by the employee or, if no day is proposed, with the first day of the first period of leave proposed by the employee. This establishes a default position for when the shared parental leave can be taken if agreement cannot be reached between employer and employee.

Paragraph (10) provides that regulations made under Article 107E may enable an employee, subject to prescribed restrictions, to vary the period or periods of shared parental leave to be taken without varying the amount of leave, and to vary the amount of leave which the employee has notified an intention to exercise.

Paragraph (11) provides that variations to the period or periods may require the employer’s consent in circumstances specified by regulations.

Paragraph (12) establishes that varying the amount of leave may require specified conditions to be met as to the giving of notice and securing the consent of the child’s mother or P.

Paragraph (13) specifies that notifications of variation of the amount of leave may need to include notice about the amount of shared parental leave the employee has taken or plans to take. Notifications may also be required to include the amount of shared parental leave or statutory shared parental pay that the other person who may be entitled to such leave or pay in respect of the child has taken or intends to take.

Paragraph (14) provides that regulations may specify the things which are and are not to be taken as done for the purpose of caring for the child; the minimum amount of shared parental leave that may be taken and provision about how this leave may be taken; the circumstances in which an employee may work for an employer during a period of shared parental leave without bringing the leave or entitlement to an end (“keeping in touch days”) and the circumstances in which the employee may be absent on shared parental leave other than for the purpose of caring for a child without bringing entitlement to an end. The latter provision might be relevant to situations where an employee has an entitlement to shared parental leave but whose child subsequently dies. The regulations may also make provision to exclude the right to be absent on shared parental leave in respect of a child where more than one child is born as a result of the same pregnancy.

Paragraph (16) allows regulations to provide for situations where a mother dies before entitlement to shared parental leave has arisen for herself or her partner.

Article 107G: Entitlement to shared parental leave: adoption

Paragraphs (1) and (4) confer powers on the Department to make regulations entitling employees who are adopters to be absent from work for the purpose of caring for a child if they satisfy certain conditions.

Paragraphs (1) to (3) are about the conditions of eligibility of the person with whom a child is to be, or is expected to be, placed for adoption (the “primary adopter”). These include certain conditions as to the primary adopter’s duration of employment, relationship with the child and as to caring with another person (“P”) for the child. Paragraph (1)(g) specifies a condition relating to the consent of P to the amount of leave the primary adopter intends to take. Paragraph (1)(f) includes a condition relating to the giving of  notice of intention to take shared parental leave; and paragraph (3) specifies what this notice may be about, such as the maximum amount of leave available to the primary adopter, the amount of leave the primary adopter intends to take and the extent to which P intends to exercise entitlement to the leave or to statutory shared parental pay.

Paragraph (2) provides that the conditions of entitlement of the primary adopter can include P meeting certain conditions in respect of employment or self-employment, earnings, relationship to the primary adopter or the child and having caring responsibility for the child. The effect of this provision is that one of the conditions of entitlement to shared parental leave for the primary adopter can relate to the primary adopter sharing the care of the child with P and P satisfying conditions as to economic activity and relation with the child or the primary adopter.

Paragraphs (4) to (6) specify conditions that may be included in regulations to give entitlement to shared parental leave to another employee (other than the primary adopter). These include certain conditions as to duration of employment, the employee’s relationship with the child and with the primary adopter and as to the employee caring with the primary adopter for the child. Paragraph (4)(d) includes a condition relating to the giving of a notice to the employer of intention to take shared parental leave. Paragraph (4)(e) specifies a condition relating to the consent of the primary adopter to the amount of leave that the other employee intends to take.

Paragraph (5) provides that the conditions for entitlement for the employee can include the primary adopter meeting conditions as to employment or self-employment and earnings; the primary adopter caring with the employee for the child; the primary adopter’s entitlement (or otherwise) to adoption leave or statutory adoption pay, and the extent of the primary adopter’s exercise of such entitlement.

Paragraph (6) specifies what the notice the employee is required to give under paragraph (4) is about. It may be about the maximum possible extent of their entitlement to leave, the amount of leave the employee intends to take, and whether and to what extent the primary adopter will exercise an entitlement to shared parental leave or statutory shared parental pay.

Article 107H: Entitlement to shared parental leave: prospective adopters with whom looked after children are placed

Article 107H concerns entitlement to shared parental leave for prospective adopters in fostering for adoption (“FFA”) situations. These are situations where a child is placed with a foster parent where there is a significant likelihood that the placement will result in that foster parent adopting the child.

Paragraph (1) specifies that regulations will include provision, in set circumstances, for shared parental leave entitlement where a child is placed by a competent authority (a Health and Social Care Trust) with an approved foster parent who is also an approved prospective adopter. 

In accordance with paragraph (2), these circumstances are where either a decision is pending or has already been taken that adoption is in the child’s best interests. Regulations may specify that certain conditions must also be satisfied in order for shared parental leave to be available. It is anticipated that this will allow the regulations to set a specific point at which entitlement will be triggered.

Paragraph (3) provides for regulations to include adaptations to appropriate references in relevant provision to placements for adoption made under the law of any part of the United Kingdom; this will convert references in relevant provisions to fit FFA cases.

Article 107I: Entitlement to leave under Article 107G: further provision

Article 107I is about the making of regulations to calculate the amount of shared parental leave available to the employee, to limit the amount of leave, to limit when it may be taken, to require the leave to be taken as a single period and to provide for the varying of the amount of shared parental leave that an employee may take and the times at which an employee takes this leave.

Paragraph (1) provides for regulations to determine the amount of shared parental leave and when this leave may be taken.  In accordance with paragraph (8), provision must be made for the taking of shared parental leave in a single period or in non-consecutive periods. The effect of this is to allow the leave to be taken more flexibly than in a single consecutive block.

Paragraph (2) deals with the maximum amount of shared parental leave as it relates to adoption leave and pay. This will be specified by regulations and is expected to be 52 weeks less the amount of adoption leave taken by the primary adopter (where the primary adopter returns to work without taking specified action to reduce the adoption leave period) or the amount by which the adoption leave period has been reduced. Where a primary adopter is entitled to statutory adoption pay only, the maximum amount of shared parental leave is again to be specified by regulations, and is expected to be 52 weeks less the number of weeks of statutory adoption pay payable to the primary adopter, or the number of weeks by which the adoption pay period has been reduced.

In accordance with paragraph (4), the amount of shared parental leave to which the employee is entitled in respect of a child takes into account the amount of such leave taken by another person in respect of that child or the number of weeks of statutory shared parental pay received by another person in respect of that child (in the case where the other person is entitled to statutory shared parental pay in respect of the child but not to shared parental leave).

Paragraph (7) ensures that shared parental leave must be taken before the end a period that may be specified.

Paragraph (9) provides that the regulations may enable an employer, in a case where an employee has proposed to take non-consecutive periods of shared parental leave, to require the employee to take that amount of leave as a single period of leave. This single period may start with a day proposed by the employee or, if no day is proposed, with the first day of the first period of leave proposed by the employee. This establishes a default position for when the shared parental leave can be taken if agreement cannot be reached between employer and employee.

Paragraph (10) provides that regulations made under Article 107G may enable an employee, subject to prescribed restrictions, to vary the period or periods of shared parental leave to be taken without varying the amount of leave, and to vary the amount of leave which the employee has notified an intention to exercise.

Paragraph (11) provides that variations to the period or periods may require the employer’s consent in circumstances specified by regulations.

Paragraph (12) establishes that varying the amount of leave may require specified conditions to be met as to the giving of notice and securing the consent of the primary adopter or P.

Paragraph (13) specifies that notifications of variation of the amount of leave may need to include notice about the amount of shared parental leave the employee has taken or plans to take. Notifications may also be required to include the amount of shared parental leave or statutory shared parental pay that the other person who may be entitled to such leave or pay in respect of the child has taken or intends to take.

Paragraph (14) provides that regulations may specify the things which are and are not to be taken as done for the purpose of caring for the child; the minimum amount of shared parental leave that may be taken and provision about how this leave may be taken; the circumstances in which keeping in touch days may be taken; and the circumstances in which the employee may be absent on shared parental leave other than for the purpose of caring for a child without bringing entitlement to an end. The latter provision might be relevant to situations where an employee has an entitlement to shared parental leave but whose child subsequently dies. The regulations may also make provision to ensure that an employee cannot take more than one period of shared parental leave in circumstances where more than one child is placed for adoption as part of the same arrangement.

Paragraph (16) enables regulations to make provision in a case where the person who is taking adoption leave or is entitled to be paid statutory adoption pay dies before another person has become entitled to shared parental leave in respect of the relevant child. This is to enable the other person to be able to become entitled to shared parental leave after the death of the primary adopter.

Article 107J: Power to apply Articles 107G and 107I to other cases

Paragraph (1) allows the regulations under Articles 107G and 107I to provide for cases where a child has been adopted under the laws of a jurisdiction outside the United Kingdom.

Paragraph (2) makes similar provision in relation to cases involving an employee who has applied, or intends to apply, with another person, under section 54 of the Human Fertilisation and Embryology Act 2008 for a parental order in respect of a child. This will allow some parents in surrogacy arrangements to be entitled to shared parental leave in the same way as certain adoptive parents. Paragraph (3) provides that the Department can prescribe that eligible intended parents in surrogacy arrangements who wish to take shared parental leave must make a statutory declaration as to their eligibility and intention to apply for a parental order.

Article 107K: Rights during and after shared parental leave

Paragraph (1) provides for regulations to specify the rights and responsibilities of employees whilst on and after shared parental leave.

Paragraph (1)(a) states that employees who are absent on shared parental leave will be entitled, as far as prescribed, to the benefit of the same terms and conditions of employment which would have applied if the employee had not been absent. Paragraph (2)(b) specifies that “terms and conditions of employment” as referenced in paragraph (1)(a) does not include remuneration.

Paragraph (1)(b) further stipulates that whilst on shared parental leave the employee will continue to be bound, as far as prescribed, by the obligations that would arise from those terms and conditions, whilst they are compatible with the taking of shared parental leave.

Paragraph (1)(c) provides for an employee who has been absent on shared parental leave to have the right to return to a kind of job as specified in regulations. Paragraph (5) provides for regulations to make provision about seniority, pension and other similar rights and terms and conditions of employment on return. Paragraph (3) stipulates that, where appropriate, the type of absence that gives rise to the right to return referenced in paragraph (1)(c) may be a continuous period of absence attributable to a combination of shared parental leave, maternity leave, paternity leave, adoption leave and parental leave.

Paragraph (4) provides that regulations may specify matters which are or are not to be treated as remuneration for the purpose of entitlement to shared parental leave (for birth and adoption).

Article 107L: Redundancy and dismissal

Article 107L provides that regulations under Article 107E or 107G may make provisions about redundancy or dismissal during a period of shared parental leave.

Paragraph (2) states that such provisions may include a requirement for an employer to offer alternative employment, and provision for the consequences of failure to comply with the regulations.

Article 107M: Chapter 1B: supplemental

Article 107M allows regulations to be made about notices, evidence, procedures to be followed and other supplementary matters.

Paragraph (1)(a) provides for regulations to make provision for notices to be given, evidence to be produced and other procedures to be followed by employers, employees and relevant persons. Paragraph (2) defines “relevant person”. Paragraph (1)(b) makes provision requiring such persons to keep records. Paragraph (1)(c) provides for the consequences of failure to give notices, produce evidence, keep records or comply with other procedural requirements. Paragraph (1)(d) provides for the consequences of failure to act in accordance with such a notice. Paragraph (1)(e) makes special provision for cases where an employee has a right which corresponds to a right to shared parental leave and which arises under the employee’s contract of employment or otherwise. Paragraph (1)(f) and (g) allow for regulations to modify provision in the ERO relating to the calculation of a week’s pay and to modify, apply or exclude statutory provisions in relation to a person entitled to shared parental leave. 

Paragraphs (3) to (5) ensure that the conditions of economic activity which may be specified under Articles 107E(2) or (5) and 107G(2) or (5) in relation to the person with whom care of the child is shared can include conditions relating to that person being an employed earner or a self-employed earner. They also ensure that the power to make provision about procedures to be followed by an employer of this other person includes, as far as concerns an employed earner, the secondary contributor (in relation to secondary Class I National Insurance contributions). 

Clause 3: Exclusion or curtailment of other statutory rights to leave

Clause 3 amends the ERO to allow regulations to be made which will enable a birth mother or primary adopter to bring their ordinary maternity or adoption leave to an end early. This will allow the person and/or their partner to access the new system of shared parental leave and pay.

The clause allows regulations to be made which will set out the circumstances in which the birth mother or adoptive parent can change their mind about a decision to end their ordinary maternity or adoption leave early. It is intended that the birth mother or adopter will be able to revoke a decision made before the birth or placement until a point to be specified in regulations. It is also intended that the birth mother or adopter will be able to revoke a decision if it becomes apparent (within a certain period of time) that the mother/primary adopter and the person with whom care of the child is shared do not meet the qualifying requirements to access shared parental leave and/or pay.

The clause provides that these regulations may only allow a birth mother or adoptive parent to bring ordinary maternity or adoption leave to an end if the mother/primary adopter and the person with whom they share care of the child take certain steps in relation to the taking of shared parental leave or pay which will include giving notice to their employers where relevant.

The clause also allows regulations to be made which will enable a birth mother or primary adopter to bring additional maternity or adoption leave to an end early. It mirrors the provisions for ordinary maternity leave which are described above.

Subsection (2) deals with ordinary maternity leave; subsection (3) with additional maternity leave; subsection (4) with ordinary adoption leave; and subsection (5) with additional adoption leave.

Finally, regulations must be made which will provide that the taking of shared parental leave prevents an employee from exercising the right to take any remaining ordinary paternity leave. This applies in both birth (subsection (6)) and adoption (subsection (7)) cases.

Clause 4: Abolition of additional paternity leave

Clause 4 removes the statutory right to additional paternity leave.

Clause 5: Statutory shared parental pay

Clause 5 inserts a new Part 12ZC into the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (“SSCBA”), enabling regulations to be made to create new entitlements to shared parental pay for qualifying birth parents, adopters and intended parents in surrogacy arrangements.

Section 167ZU: Entitlement: birth 

Subsections (1) and (3) confer power to make regulations to provide that where the respective conditions in subsections (2) and (4) are satisfied, the mother of a child (the “claimant mother”) and another person (the “claimant”) are entitled to payments to be known as “statutory shared parental pay”.

Subsection (2) deals with the conditions the claimant mother must meet.

Subsection (2)(a) is that the claimant mother and another person (“P”) must satisfy certain prescribed conditions as to caring or intending to care for the child.

Subsection (2)(b) specifies that P must meet certain prescribed conditions as to employment status, earnings and relationship with the claimant mother or child.

The conditions in subsection (2)(c), (2)(d) and (2)(e) require the claimant mother to have met prescribed conditions regarding length of service, earnings and entitlement to be in employment. The condition in subsection (2)(f) is that, if regulations so provide, the claimant mother continues in employed earner’s employment until such a time as specified.

The condition in subsection (2)(g) is that the claimant mother became entitled to receive statutory maternity pay in respect of the child.

Subsection (2)(h) relates to the reduction of the maternity pay period.

The condition in subsection (2)(i) and (2)(j) is that the claimant mother has given notice of the total number of weeks for which she would be entitled to claim statutory shared parental pay, the number of weeks she intends to claim the pay and the number of weeks P intends to claim the pay and the periods during which the claimant mother intends to claim the pay. Subsection (2)(k) relates to the timing, form and content of such notices.

P’s consent to the amount of statutory shared parental pay the claimant mother intends to claim is the condition in subsection (2)(l).

The condition in subsection (2)(m) is that it must be the claimant mother’s intention to care for the child during each week in which statutory shared parental pay is paid to her.

The conditions in subsections (2)(n) and (2)(o) are that the claimant mother must be absent from work for each week that statutory shared parental pay is paid to her. Where she is an employee, she must be absent from work on shared parental leave.

Subsection (4) deals with the conditions that the claimant must meet.

The condition in subsection (4)(a) is that the claimant and another person who is the mother of a child satisfy certain prescribed conditions as to caring or intending to care for the child.

Subsection (4)(b) requires that the claimant must satisfy certain conditions as to the relationship with the child or the child’s mother.

Subsection (4)(c) provides that the child’s mother must meet certain employment status and earnings criteria.

The conditions in subsection (4)(d), (4)(e) and (4)(f) relate to continuous service, earnings and entitlement to be in that employment. The condition in subsection (4)(g) is that the claimant, if so prescribed, must continue in employed earner’s employment until such a time as specified in regulations.

The condition in subsection (4)(h) is that the mother of the child must have been entitled as a result of the birth of the child to receive either maternity allowance or statutory maternity pay. The condition in subsection (4)(i) relates to the reduction of the maternity pay period or the maternity allowance period applying to the mother.

In accordance with subsection (4)(j) and (4)(k), the claimant must have given notice of the number of weeks for which he or she would be entitled to claim statutory shared parental pay, the number of weeks he or she intends to claim the pay and the number of weeks the child’s mother intends to claim the pay and the periods during which the claimant intends to claim the pay. Subsection (4)(l) relates to the timing, form and content of such notices.

The condition in subsection 4(m) is that the mother of the child must consent to the amount of statutory shared parental pay that the claimant intends to claim.

Subsection (4)(n) provides that it must be the claimant’s intention to care for the child during each week in which statutory shared parental pay is paid to the claimant.

The condition in subsection (4)(o) and (4)(p) is that the claimant must be absent from work for each week that statutory shared parental pay is paid to the claimant. If the claimant is an employee, the claimant must be absent from work on shared parental leave.

Section 167ZV: Extent of entitlement and when payable: birth

Subsection (1) of section 167VZ provides for the Department to make regulations to determine the extent of a person’s entitlement to statutory shared parental pay in respect of a child, and when it is to be paid.

Under subsections (2) and (3), the extent of a person’s entitlement to statutory shared parental pay cannot exceed the length of the maternity pay period (currently 39 weeks) less the number of weeks that maternity allowance or maternity pay is payable until the mother’s return to work or the number of weeks by which the maternity pay period or maternity allowance period has been reduced (where the mother reduces these periods before returning to work).

Subsection (6) is to ensure that where two people are both entitled to statutory shared parental pay in respect of the same child, the total number of weeks taken by both does not exceed the number of weeks calculated under subsection (2).

Subsection (7) is to ensure that payments of statutory shared parental pay cannot be made to a person after a prescribed period. Subsection (8) secures that no payment of statutory shared parental pay may be made before the end of the mother’s maternity pay period.

Subsection (9) allows for provision enabling a person who is entitled to statutory shared parental pay to vary the period or periods during which that person intends to claim the pay without varying the overall amount the person intends to take, provided certain conditions are satisfied. These conditions are specified in subsection (10). They require the intending claimant to give notice of intention to vary to the person who will be liable to make the payment. The notice must satisfy certain prescribed conditions as to time, form and content.

Subsection (11) makes clear that regulations may provide for a person who is entitled to statutory shared parental pay to vary the number of weeks for which he or she intends to claim. In order to do so he or she must, in accordance with paragraph (12), notify the person liable to make the payment of the extent to which he or she and another person have used pay entitlement to date and the extent to which both individuals plan to use it in future. The consent of the other person must be obtained and the notice must adhere to certain conditions as to timing, form and content.

Subsection (13) specifies that a person’s entitlement to statutory shared parental pay under sections 167ZU and 167ZV is not affected by the birth of more than one child as a result of the same pregnancy.

Section 167ZW: Entitlement: adoption

Subsections (1) and (3) confer power to make regulations to provide that where the respective conditions in subsections (2) and (4) are satisfied, a person with whom a child is, or is expected to be, placed for adoption (“claimant A”, the primary adopter) and another person (“claimant B”) are to be entitled to payments to be known as “statutory shared parental pay”.

Subsection (2) deals with the conditions claimant A must meet.

Subsection (2)(a) specifies that claimant A and another person (“X”) must satisfy certain prescribed conditions as to caring or intending to care for the child.

Subsection (2)(b) specifies that X must meet certain prescribed conditions as to employment status, earnings and relationship with claimant A or the child. In practice, X may also be the person who is claimant B for the purposes of subsection (3).

The conditions in subsection (2)(c), (2)(d) and (2)(e) require claimant A to have met certain prescribed conditions regarding length of service, earnings and entitlement to be in employment. The condition in subsection (2)(f) is that, if regulations so provide, claimant A must continue in employed earner’s employment until such a time as specified.

The condition in subsection (2)(g) is that claimant A became entitled to receive statutory adoption pay in respect of the child.

Subsection (2)(h) relates to the reduction of the adoption pay period.

The condition in subsection (2)(i) and (2)(j) is that claimant A has given notice of the total number of weeks for which he or she would be entitled to claim statutory shared parental pay, the number of weeks for which he or she intends to claim the pay, the number of weeks X intends to claim the pay and the periods during which claimant A intends to claim the pay. Subsection (2)(k) relates to the timing, form and content of such notices.

X’s consent to the amount of statutory shared parental pay claimant A intends to claim is the condition in subsection (2)(l).

The condition in subsection (2)(m) is that it must be claimant A’s intention to care for the child during each week in which statutory shared parental pay is paid to claimant A.

The conditions in subsection (2)(n) and (2)(o) are that claimant A must be absent from work for each week that statutory shared parental pay is paid to him or her. Where claimant A is an employee, that person must be absent from work on shared parental leave.

Subsection (4) deals with the conditions that claimant B must meet.

The condition in subsection (4)(a) is that claimant B and another person (“Y”) who is a person with whom a child is, or is expecting to be, placed for adoption satisfy certain prescribed conditions as to caring or intending to care for the child.

Subsection (4)(b) requires that claimant B must satisfy certain conditions as to the relationship with the child or Y. In practice, Y may also be the same person who is claimant A for the purposes of subsection (1).

Subsection (4)(c) provides that Y must meet certain employment status and earnings criteria, the details of which will be prescribed in regulations.

The conditions in subsection (4)(d), (4)(e) and (4)(f) relate to continuous service, earnings and entitlement to be in that employment. The condition in subsection (4)(g) is that claimant B, if so prescribed, must continue in employed earner’s employment until such a time as specified in regulations.

The condition in subsection (4)(h) is that Y must have been entitled to receive statutory adoption pay by reference to the child. The condition in subsection (4)(i) relates to the reduction of the adoption pay period applying to Y.

In accordance with subsection (4)(j) and (4)(k), claimant B must have given notice of the number of weeks for which claimant B would be entitled to claim statutory shared parental pay, the number of weeks claimant B intends to claim pay and the number of weeks Y intends to claim the pay and the periods during which claimant B intends to claim the pay. Subsection (4)(l) relates to the timing, form and content of such notices.

The condition in subsection (4)(m) is that Y must consent to the amount of statutory shared parental pay that claimant B intends to claim.

Subsection (4)(n) provides that it must be claimant B’s intention to care for the child during each week in which statutory shared parental pay is paid to claimant B.

The condition in subsection (4)(o) and (4)(p) is that claimant B must be absent from work for each week that statutory shared parental pay is paid to claimant B. If claimant B is an employee, claimant B must be absent from work on shared parental leave.

Section 167ZX: Extent of entitlement and when payable: adoption

Subsection (1) provides for the Department to make regulations to determine the extent of a person’s entitlement to statutory shared parental pay in respect of a child, and when it is to be paid.

Under subsections (2) and (3), the extent of a person’s entitlement to statutory shared parental pay cannot exceed the length of the adoption pay period (currently 39 weeks) less the number of weeks that adoption pay is payable until the claimant’s return to work or the number of weeks by which the adoption pay period has been reduced (where the claimant reduces these periods before returning to work). Subsection (3) defines the meaning of “relevant week”.

Subsection (5) is to ensure that when two people are entitled to statutory shared parental pay in respect of the same child, the total number of weeks taken by both cannot exceed the number of weeks calculated under subsection (2).

Subsection (6) is to ensure that payments of statutory shared parental pay cannot be made to a person after a prescribed period. Subsection (7) secures that no payment of statutory shared parental pay may be made before the end of a person’s adoption pay period.

Subsection (8) allows for provision enabling a person who is entitled to statutory shared parental pay to vary the period(s) during which that person intends to claim the pay without varying the overall amount the person intends to take, provided certain conditions are satisfied. These conditions are specified in subsection (9). They require the intending claimant to give notice of intention to vary to the person who will be liable to make the payment. The notice must satisfy certain prescribed conditions as to time, form and content.

Subsection (10) makes clear that regulations may provide for a person who is entitled to statutory shared parental pay to vary the number of weeks for which he or she intends to claim. In order to do so he or she must, in accordance with paragraph (11), notify the person liable to make the payment of the extent to which he or she and another person have used pay entitlement to date and the extent to which both individuals plan to use it in future. The consent of the other person must be obtained and the notice must adhere to certain conditions as to timing, form and content.

Subsection (12) specifies that if a person adopts more than one child as part of the same arrangement, he or she will not be entitled to take any more shared parental pay than that to which he or she would have been entitled if only one child was adopted.

Section 167ZY: Entitlement etc.: prospective adopters with whom looked after children are placed

Section 167ZY provides for the making of regulations extending entitlement to statutory shared parental pay to FFA arrangements.

Subsection (1) specifies that regulations are to provide for statutory shared parental pay in respect of a child placed by a competent authority (a Health and Social Care Trust) with an approved foster parent who is also an approved prospective adopter.

In accordance with subsection (2), such provision is to be made in circumstances where either a decision is pending or has already been taken that adoption is in the child’s best interests. Regulations may specify that certain further conditions must also be satisfied, allowing the regulations to set a specific point at which entitlement will be triggered.

Subsection (3) provides for regulations to include adaptations to appropriate references in relevant provision to placements for adoption made under the law of any part of the United Kingdom; this will convert references in relevant provisions to fit FFA cases.

Section 167ZZ: Entitlement: general

Section 167ZZ makes further provision about a person’s entitlement to statutory shared parental pay (whether in relation to birth or adoption).

Subsection (1)(a) empowers the Department to provide that the entitlement conditions for statutory shared parental pay do not have effect, or have effect subject to prescribed modifications in such cases as may be prescribed. Subsection (1)(b) deals with requirements about evidence of entitlement and subsection (2) specifies persons on whom those requirements may be imposed. Subsection (1)(c) to (f) provides power for the Department to make provision relating to continuous employment and the calculation of earnings.

Section 167ZZ1: Liability to make payments

Subsection (1) provides for employers to be liable for the payment of statutory shared parental pay. (However, under Article 8 of the Employment (Northern Ireland) Order 2002, as amended by Schedule 1, provision is made for the funding of employers’ liabilities to pay statutory shared parental pay).

Subsection (2) requires the Department to make regulations about the liability of a former employer to pay statutory shared parental pay where the employee has been dismissed by the employer to avoid liability for payment.

Subsection (3) provides power for the Department, with the concurrence of the Commissioners for Her Majesty’s Revenue and Customs, to specify in regulations circumstances in which liability for paying statutory shared parental pay is to fall on the Commissioners.

Section 167ZZ2: Rate and period of pay

Section 167ZZ2 deals with the rate at which statutory shared parental pay is payable and the period for which it is payable (whether in relation to birth or adoption).

Subsection (1) provides for the weekly rate to be set by regulations. Subsection (2) provides for payments on a weekly basis. Subsection (3) provides that statutory shared parental pay is not generally payable except in connection with a person’s intention to care for the child; and subsection (4) provides that it is not generally payable during a week in which a person works. Subsection (5) empowers the Department to specify when there is no liability to pay. Subsection (6) specifies how the daily rate can be calculated. Subsection (7) specifies when a week falls within the pay period.

Section 167ZZ3: Restrictions on contracting out

Subsection (1) provides that an agreement is void to the extent that it purports to exclude, limit or otherwise modify any provision of the Part of the Act dealing with statutory shared parental pay, or to require a person to contribute (whether directly or indirectly) towards any relevant costs incurred by that person’s employer or former employer.

Subsection (2) contains a provision which ensures that certain agreements with an employee authorising deductions from shared parental pay are not void.

Section 167ZZ4: Relationship with contractual remuneration

Section 167ZZ4 deals with the way in which statutory shared parental pay interacts with contractual remuneration.

Subsection (1) provides that, subject to subsections (2) and (3), any entitlement to statutory shared parental pay is not to affect any right of any person in relation to contractual remuneration. Subsection (2) specifies that payment of contractual remuneration can be counted as discharging a liability of the employer to pay statutory shared parental pay. Also payment of statutory shared parental pay can be counted as discharging an obligation of the employer to pay contractual remuneration. Subsection (3) makes provision for regulations to provide which payments are to be treated as contractual remuneration for the purposes of subsections (1) and (2).

Section 167ZZ5: Crown employment - Part 12ZC

Section 167ZZ5 ensures that the remaining provisions of this Part of the Act, namely those dealing with statutory shared parental pay, apply to those in Crown employment as well as those not in Crown employment.

Section 167ZZ6: Special classes of person

Section 167ZZ6 provides a regulation making power for modifying any provision of the Part of the Act dealing with statutory shared parental pay as it applies to to special classes of person, namely those employed on board any ship, vessel, hovercraft or aircraft; persons outside Northern Ireland in prescribed situations; and in prescribed employment in connection with continental shelf operations.

Section 167ZZ7: Part 12ZC: supplementary

Subsection (3) allows regulations to modify application of the definition of “employee” contained in subsection (2). Subsection (4) provides that, in accordance with regulations, two or more employers and two or more contracts of service in respect of the same employee may be treated as one. Subsection (6) deals with the calculation of weekly earnings and subsection (8) provides as to calculation of a person’s normal weekly earnings. Subsections (9) to (11) make special provision as to the treatment of contracts of employment within the National Health Service.

Section 167ZZ8: Power to apply Part 12ZC to other cases

Subsection (1) enables provision to be made so that shared parental pay regulations may have effect in relation to cases involving the adoption of a child from outside the United Kingdom. Subsection (2) makes like provision in relation to intended parents in surrogacy arrangements who meet certain conditions. Subsection (3) enables regulations to require that intended parents in surrogacy arrangements who wish to take shared parental pay must make statutory declarations as to their eligibility and intention to apply for a parental order.

Clause 6: Exclusion or curtailment of other statutory rights to pay

Clause 6 amends the SSCBA, allowing regulations to be made that will enable the reduction of a person's maternity allowance period, maternity pay period or adoption pay period subject to prescribed conditions. The purpose is to allow the individual to access the new system of shared parental leave and pay.

Subsection (2) makes relevant amendments to section 35 of the SSCBA concerning the maternity allowance period. Subsection (3) further amends section 35 to ensure that a woman is not entitled to maternity allowance in respect of a week during which she would have been entitled to statutory maternity pay had she not reduced her statutory maternity pay period.

Subsection (4) makes relevant amendments to section 161 of the SSCBA concerning the maternity pay period and subsection (6) similarly amends section 167ZN in respect of the adoption pay period.

Subsection (5) inserts provisions into section 167ZE of the SSCBA to specify that statutory paternity pay will not be payable in respect of a child where the person has been paid statutory shared parental pay or is due to be paid statutory shared parental pay for that week.

Clause 7: Abolition of additional paternity pay

Clause 7 removes the statutory right to additional statutory paternity pay.

Clause 8: Other statutory rights to leave of prospective adopters with whom looked after children are placed

Clause 8 inserts provisions in the ERO which facilitate the extension of existing paternity and adoption leave rights to include FFA arrangements.

Subsections (2) and (3) amend the ERO, including the insertion of a new Article 107AB, to make relevant provision in respect of ordinary adoption leave. The amendments provide that regulations may include conditions as to being an approved foster parent, being an approved prospective adopter and being notified by a competent authority (a Health and Social Care Trust) that a child is to be placed or is likely to be placed with the employee in circumstances where a decision is pending or has already been taken that adoption is in the child's best interests. The regulations may also prescribe further conditions which, it is envisaged, will allow a specific point to be set at which entitlement will be triggered.

Subsections (4) and (5) make comparable changes to the ERO, including the insertion of a new Article 112BA, so that paternity leave is available for the employed partners of adopters who have or expect to have a child placed with them in the circumstances referred to above. Subsection (4) deals with regulations to ensure that the employee, having taken paternity leave in respect of a FFA placement, has no entitlement to take paternity leave when the same child is formally placed for adoption.

Clause 9: Other statutory rights to pay of prospective adopters with whom looked after children are placed

Clause 9 inserts provisions in the SSCBA which facilitate the extension of existing rights to statutory paternity and adoption pay to include FFA arrangements.

Subsection (2) inserts section 167ZBA into the SSCBA, relating to entitlement to statutory paternity pay. Subsection (4) inserts section 167ZLA into the SSCBA, relating to entitlement to statutory adoption pay.

Inserted section 167BA(1) and (2) specify that relevant cases are those involving a competent authority (a Health and Social Care Trust) placing, or expecting to place, a child with a foster parent who is also an approved prospective adopter in a situation where a decision is pending or has already been taken that adoption is in the child's best interests. The regulations may also prescribe further conditions which, it is envisaged, will allow a specific point to be set at which entitlement will be triggered. Inserted section 167LZA(1) and (2) has a comparable effect in relation to statutory adoption pay entitlement.

Sections 167BA(3) and 167ZLA(3) respectively provide that regulations may prescribe how entitlement to statutory paternity pay and statutory adoption pay are to be extended to cover situations of this kind.

Sections 167BA(4) and 167ZLA(4) respectively specify that a person who becomes entitled to statutory paternity pay or statutory adoption pay in a FFA context has no later entitlement to claim that statutory pay when the same child is formally placed for adoption.

Subsections (3) and (5) respectively ensure that regulations may adapt references to the rate and period of statutory paternity pay and statutory adoption pay to ensure that FFA arrangements are included.

Clause 10: Other statutory rights to leave of applicants for parental orders

Clause 10 makes provision for intended parents in surrogacy arrangements, who are entitled and intend to make an application for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008, to be entitled to paternity leave and to adoption leave in respect of the child who is the subject of the order.

Subsection (2) inserts Article 107AC into the ERO to enable the Department by regulations to apply the provisions for ordinary adoption leave (in Article 107A) to cases involving an employee who has applied or intends to apply, with another person, for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child who is the subject of the parental order. Subsection (3) inserts Article 107BA into the ERO to enable the Department by regulations to apply the provisions for additional adoption leave (in Article 107B) to the employee and child in like manner.

Subsection (4) amends Article 107D of the ERO to enable the Department, when making regulations about ordinary or additional adoption leave which concern cases involving an application for a parental order, to require the employee to make a statutory declaration as to his or her eligibility, with another person, to apply for the order and his or her intention to make such an application.

Subsection (5) inserts Article 112BA1 into the ERO to enable the Department to make regulations to provide that ordinary paternity leave following birth may apply to intended parents in surrogacy cases where an employee, with another person, is eligible and intends to apply for a parental order in respect of the child who is the subject of such an order.

Clause 11: Other statutory rights to pay of applicants for parental orders

Clause 11 makes provision for intended parents in surrogacy arrangements, who are entitled and intend to make an application for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008, to be entitled to statutory paternity pay and to statutory adoption pay in respect of the child who is the subject of the order.

Subsection (2) amends section 167ZK of the SSCBA concerning ordinary paternity pay so that regulations may apply ordinary paternity pay to qualifying intended parents in surrogacy arrangements.

Subsection (3) amends section 167ZT of the SSCBA concerning statutory adoption pay. New section 167ZT(2) enables regulations to be made to apply statutory adoption pay to qualifying intended parents in surrogacy arrangements. New section 167ZT(3) enables the regulations in those cases to impose requirements on intended parents in surrogacy arrangements to provide statutory declarations as to their eligibility and intention to apply for a parental order.

Clause 12: Statutory paternity pay: notice requirement and period of payment

Subsection (2) amends section 167ZC of the SSCBA to require a person to give notice in order to take statutory paternity pay and provides a power for the Department to set the amount of notice which the person must give.

Subsection (3), which amends section 167ZE of the SSCBA, gives the Department power to set the number of weeks of statutory paternity pay in regulations subject to a minimum of two weeks. It also allows regulations to be made to enable paternity pay to be taken in non-consecutive periods of not less than one week. This will allow for potential future changes to the way in which the right operates.

Clause 13: Rate of statutory adoption pay

Subsection (2) amends section 167ZN of the SSCBA, providing for statutory adoption pay to be paid at an earnings related level for the first six weeks and the lower of an earnings related rate or a prescribed weekly rate for the remaining weeks of statutory adoption pay. This modifies the current requirement, which does not require any specific treatment of pay during particular weeks.

It also sets the earnings related rate to be the equivalent of 90% of a person’s normal weekly earnings for the eight weeks ending with the week in which the person was notified of the adoption match. The prescribed weekly rate must not be lower than the highest weekly rate that has been set for statutory sick pay.

Clause 14: Further amendments

Clause 14 gives effect to Schedule 1. It also indicates how references to “ordinary statutory paternity pay” and “statutory paternity pay” in instruments, documents and statutory provisions are to be read once “ordinary statutory paternity pay” is renamed as “statutory paternity pay”.

Schedule 1: Minor and consequential amendments

Many of the paragraphs in Schedule 1 make amendments to legislation to rename “ordinary statutory paternity pay” and “ordinary paternity leave” as “statutory paternity pay” and “paternity leave”. Amendments also remove references to “additional paternity leave” and “additional paternity pay”. With the abolition of additional paternity leave and additional statutory paternity pay there will only be one type of paternity leave and pay and the references to “ordinary” and “additional” are no longer relevant.

Amendments further insert references to “statutory shared parental pay” and “shared parental leave” where appropriate.

Paragraph 1 amends Schedule 5 to the Social Security (Northern Ireland) Order 1989. Sub-paragraphs 2 and 3 amend the existing paragraphs of Schedule 5 about employment-related schemes that contain unfair paternity leave provisions and unfair adoption leave provisions so that they also apply in cases relating to placement of a child under FFA and surrogacy arrangements. Sub-paragraph 4 adds a new paragraph to Schedule 5 about employment-related schemes that contain unfair shared parental leave provisions.

Paragraph 4(11)(d) and (f) amend powers in the ERO to allow the Department to set out in subordinate legislation the nature of the right to return to work following a period of paternity leave which was combined with a period of shared parental leave.

PART 3: TIME OFF WORK: ANTE-NATAL CARE, ADOPTION APPOINTMENTS

Clause 15: Time off work to accompany to ante-natal appointments

Clause 15 amends the ERO to make provision to allow employees to take time off work to attend ante-natal appointments.

Subsection (2) inserts new Articles 85ZE to 85ZI in the ERO.

Subsection (3) amends Article 21 of the ERO to provide that the calculation date to be used for determining a week’s pay for an employee is the date of the appointment in question.

Subsection (4) amends Article 70C of the ERO to give an employee a right not to be subjected to a detriment as a result of exercising or proposing to exercise a right to time off work to accompany a pregnant woman to an ante-natal appointment. (A similar right for an agency worker not to be subjected to a detriment is created in clause 18.)

Subsection (5) amends Article 131 or the ERO to give an employee a right not to be unfairly dismissed, as a result of exercising or proposing to exercise a right to time off work to accompany a pregnant woman to an ante-natal appointment.

Article 85ZE: Right to time off to accompany to ante-natal appointment

Article 85ZE(1) creates a right for an employee who has a qualifying relationship with a pregnant woman or her expected child to take time off during working hours to accompany her to an ante-natal appointment which, in accordance with paragraph (4), must be made on the advice of a designated healthcare professional. Paragraphs (7) to (10) define a qualifying relationship so that the right is available to the woman's husband, civil partner or partner; the father or parent of the pregnant woman’s expected child; and an intended parent in a surrogacy situation who meets specified conditions.

In accordance with paragraphs (2) and (3), the right to take time off can be exercised on up to two occasions for a maximum of six and a half hours on each occasion. Paragraph (5) provides that an employee is not entitled to take time off unless he or she gives the employer (upon request) a declaration in the form specified in paragraph (6). Paragraph (6) provides that the declaration must set out the employee's relationship to the woman and expected child, the purpose in taking time off, the fact that the appointment is made on the advice of a designated healthcare professional, and the date and time of the appointment.

Article 85ZF: Complaint to industrial tribunal

Article 85ZF(1) provides that an employee who is unreasonably refused time off by an employer may present a complaint to an industrial tribunal. The complaint must be made within the designated time limit in paragraph (2) (usually three months). If the complaint is substantiated the tribunal, per paragraph (3), must make an order to this effect and must award compensation calculated in accordance with paragraphs (4) to (7) of twice the hourly pay of the employee for the period of absence.

Article 85ZG: Right to time off to accompany to ante-natal appointments: agency workers

Article 85ZG(1) creates a right for an agency worker who has a qualifying relationship with a pregnant woman or her expected child to take time off during working hours to accompany her to an ante-natal appointment which, in accordance with paragraph (4), must be made on the advice of a designated healthcare professional.  Paragraphs (7) to (10) define a qualifying relationship so that the right is available to the woman's husband, civil partner or partner; the father or parent of the pregnant woman’s expected child; and an intended parent in a surrogacy situation who meets specified conditions.

In accordance with paragraphs (2) and (3), the right to take time off can be exercised on up to two occasions for a maximum of six and a half hours on each occasion. Paragraph (5) provides that an agency worker is not entitled to take time off unless he or she gives the temporary work agency or the hirer (upon request) a declaration in the form specified in paragraph (6). Paragraph (6) provides that the declaration must set out the agency worker's relationship to the woman and expected child, the purpose in taking time off, the fact that the appointment is made on the advice of a designated healthcare professional, and the date and time of the appointment.

Article 85ZH: Complaint to industrial tribunal: agency workers

Article 85ZH(1) provides that an agency worker who is unreasonably refused time off by a temporary work agency may present a complaint to an industrial tribunal; paragraph (2) provides the same right where the unreasonable refusal is by the hirer. The complaint must be made within the designated time limit in paragraph (3) (usually three months). If the complaint is substantiated the tribunal, per paragraph (4), must make an order to this effect and must award compensation calculated in accordance with paragraphs (6) to (9) of twice the hourly pay of the agency worker for the period of absence. In ordering such a payment, the tribunal under paragraph (5) will determine the proportion to be paid, respectively, by the temporary work agency and the hirer in accordance with its assessment of the culpability of each for the infringement.

Article 85ZI: Agency workers: supplementary

Article 85ZI sets out which agency workers have the right to time off under Article 85ZG.

Clause 16: Time off work for ante-natal care: increased amount of award

Clause 16 increases the amount of compensation that an industrial tribunal will order where it finds that a pregnant employee or agency worker has unreasonably been refused time off work to attend an ante-natal appointment. The amount is increased from the hourly pay of the employee or agency worker to twice that amount.

Subsection (2) amends Article 85 of the ERO to this effect in respect of employees and subsection (3) amends Article 85ZC in respect of agency workers.

Clause 17: Time off work to attend adoption appointments

Clause 17 amends the ERO, making provision for employed single adopters, or employed adoptive couples, to take time off to attend appointments relating to the placement of a child for adoption (including FFA arrangements). The purpose of the appointments is to enable the adopter(s) to bond with the child and to meet with professionals involved in the care of the child, thus increasing the chances of the adoption being successful.

Subsection (2) inserts new Articles 85ZJ to 85ZS into the ERO.

Subsection (3) amends Article 21 of the ERO to provide that the calculation date to be used for determining a week’s pay for an employee is the date of the appointment in question.

Subsection (4) amends Article 70C of the ERO to give an employee a right not to be subjected to a detriment as a result of exercising or proposing to exercise a right to time off work to attend adoption appointments. (A similar right for an agency worker not to be subjected to a detriment is created in clause 18.)

Subsection (5) amends Article 112B of the ERO so that provision may be made that will exclude a person who has exercised the right to paid time off to attend adoption appointments from simultaneously availing of the right to paternity leave.

Subsection (6) amends Article 131 of the ERO to give an employee a right not to be unfairly dismissed, as a result of exercising or proposing to exercise a right to time off to attend adoption appointments.

Article 85ZJ: Right to paid time off to attend adoption appointments

Article 85ZJ creates a new right for employees to take paid time off work to attend adoption appointments.

Paragraph (1) creates a right for an employed single adopter who has been notified by an adoption agency that a child is, or is expected to be, placed for adoption with him or her, to take time off to attend an appointment for the purpose of having contact with the child or for any other purpose connected with the adoption (an “adoption appointment”).

Paragraph (2) creates a right for an employee who has been notified by an adoption agency that a child is to be or is expected to be placed for adoption with the employee and another person to take time off to attend an adoption appointment provided he or she has elected to exercise the right to take time off under this paragraph.

Paragraph (3) provides that the employee cannot elect to take time off under paragraph (2) if he or she has already elected to take time off under Article 85ZL(1)(b) (unpaid time off), or if the other adopter, being an employee or an agency worker, has already elected to take time off under paragraph (2)(b) or Article 85ZN(2)(b).

Paragraph (4) provides that an employee is not entitled to take time off to attend adoption appointments on or after the date of the child’s placement for adoption with the employee.

Paragraph (5) limits the number of adoption appointments that may be taken to no more than five for any particular adoption. Paragraph (6) limits the maximum amount of time off for each adoption appointment to six and a half hours.

Paragraph (7) provides that the adoption appointment must have been arranged by or at the request of the adoption agency which made the notification of the placement or the expected placement for adoption.

Paragraph (8) provides that a single adopter is not entitled to take time off under paragraph (1) unless he or she provides to his or her employer (upon request) a document showing the date and time of the adoption appointment in question and that it has been arranged by an adoption agency.

Paragraph (9) similarly provides that an employee adopting with another person is not entitled to take time off under paragraph (2) unless the or she provides to his or her employer (upon request) a document that shows the date and time of the adoption appointment and a signed declaration indicating the election to take time off under paragraph (2)(b).

Paragraph (10) provides that the document that shows the date and time of the appointment or the declaration relating to the election under paragraph (8) or (9) can be in electronic form.

Paragraph (11) makes provision to modify the operation of Article 85ZJ where more than one child is, or is expected to be, placed as part of the same arrangement (for example, where siblings are to be placed with the same adopter). Where the adoption appointments relate to the adoption of more than one child, the effect is that the election under paragraph (2)(b) relates to all the children; the maximum number of adoption appointments remains five in total; and the date after which no adoption appointments can be taken is the placement date of the first child.

Article 85ZK: Right to remuneration for time off under Article 85ZJ

Paragraph (1) makes provision for an employee entitled to attend adoption appointments under Article 85ZJ to be paid remuneration by his or her employer for the number of working hours for which he or she is entitled to be absent at the appropriate hourly rate, calculated in accordance with paragraphs (2) to (4).

Paragraph (5) provides that any amount of remuneration for time off under paragraph (1) does not affect any right to contractual remuneration. However, paragraphs (6) and (7) provide that any contractual remuneration will contribute towards discharging any liability of that employer to pay remuneration under paragraph (1), and vice versa.

Article 85ZL: Right to unpaid time off to attend adoption appointments

Paragraph (1) creates a right for an employed adopter who has been notified by an adoption agency that a child is, or is expected to be, placed for adoption with him or her and another person, to take time off to attend an adoption appointment, provided he or she has elected to take time off under paragraph (1)(b).

Paragraph (2) provides that an employee may not elect to take time off under paragraph (1) if he or she has already elected to take paid time off under Article 85ZJ, or if the other adopter has already elected to take unpaid time off under paragraph (1)(b) or under Article 85ZP(1)(b).

Paragraph (3) provides that an employee is not entitled to take time off to attend adoption appointments on or after the date of the child’s placement for adoption with the employee.

Paragraphs (4) and (5) limit the number of adoption appointments that may be taken to two appointments of six and a half hours each.

Paragraph (6) provides that the adoption appointment must have been arranged by or at the request of the adoption agency which made the notification of the placement or the expected placement for adoption.

Paragraph (7) provides that an employee is not entitled to take time off under unless he or she provides to the employer (upon request) a document showing the date and time of the adoption appointment in question and that it has been arranged by an adoption agency, and a signed declaration that he or she has made an election for the purposes of paragraph (1)(b). Per paragraph (8), the declaration or document may be in electronic form.

Paragraph (9) makes provision to modify the operation of Article 85ZL where more than one child is, or is expected to be, placed as part of the same arrangement (for example, where siblings are to be placed with the same adopter). Where the adoption appointments relate to the adoption of more than one child, the effect is that the election under paragraph (1)(b) relates to all the children; the maximum number of adoption appointments remains two in total; and the date after which no adoption appointments can be taken is the placement date of the first child.

Article 85ZM: Complaint to industrial tribunal

Paragraph (1) provides that an employee may complain to an industrial tribunal if the employer has unreasonably refused time off under Article 85ZJ or 85ZL to attend an adoption appointment or has failed to pay amounts due under Article 85ZK. The complaint must be made within the time limit designated in paragraph (2), normally three months.

If the complaint is substantiated the tribunal, per paragraph (3), must make a declaration accordingly. If time off has been refused, it must also order the employer to pay the employee twice the amount to which he or she would have been entitled, per paragraphs (4), (6) and (7). If there has been a failure on the part of the employer to pay all or part of the amount due in respect of time off, the tribunal under paragraph (5) must order the employer to pay the due amount to the employee.

Article 85ZN: Right to paid time off to attend adoption appointments: agency workers

Article 85ZN creates a new right for agency workers to take paid time off work to attend adoption appointments.

Paragraph (1) creates a right for an employed single adopter who has been notified by an adoption agency that a child is, or is expected to be, placed for adoption with him or her, to take time off to attend an adoption appointment.

Paragraph (2) creates a right for an 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 and another person, to take time off to attend an adoption appointment, provided he or she has elected to exercise the right to take time off under this paragraph.

Paragraph (3) provides that the agency worker cannot elect to take time off under paragraph (2) if he or she has already elected to take time off under Article 85ZP(1)(b) (unpaid time off), or if the other adopter, being an agency worker or an employee, has already elected to take time off under paragraph (2)(b) or Article 85ZJ(2)(b).

Paragraph (4) provides that an agency worker is not entitled to take time off to attend adoption appointments on or after the date of the child’s placement for adoption with the agency worker.

Paragraph (5) limits the number of adoption appointments that may be taken to no more than five for any particular adoption. Paragraph (6) limits the maximum amount of time off for each adoption appointment to six and a half hours.

Paragraph (7) provides that the adoption appointment must have been arranged by or at the request of the adoption agency which made the notification of the placement or the expected placement for adoption.

Paragraph (8) provides that a single adopter is not entitled to take time off under paragraph (1) unless he or she provides to the temporary work agency or the hirer (upon request) a document showing the date and time of the adoption appointment in question and that it has been arranged by an adoption agency.

Paragraph (9) similarly provides that an agency worker adopting with another person is not entitled to take time off under paragraph (2) unless he or she provides to the temporary work agency or hirer (upon request) a document that shows the date and time of the adoption appointment and a signed declaration stating the election to take time off under paragraph (2)(b).

Paragraph (10) provides that the document that shows the date and time of the appointment or the declaration relating to the election under paragraphs (8) or (9) can be in electronic form.

Paragraph (11) makes provision to modify the operation of Article 85ZN where more than one child is, or is expected to be, placed as part of the same arrangement (for example, where siblings are to be placed with the same adopter). Where the adoption appointments relate to the adoption of more than one child, the effect is that the election under paragraph (2)(b) relates to all the children; the maximum number of adoption appointments remains five in total; and the date after which no adoption appointments can be taken is the placement date of the first child.

Article 85ZO: Right to remuneration for time off under Article 85ZN

Paragraph (1) makes provision for an agency worker entitled to attend adoption appointments under Article 85ZN to be paid remuneration by the temporary work agency for the number of working hours for which the agency worker is entitled to be absent at the appropriate hourly rate, calculated in accordance with paragraphs (2) and (3).

Paragraph (4) provides that any amount of remuneration for time off under paragraph (1) does not affect any right to contractual remuneration. However, paragraphs (5) and (6) provide that any contractual remuneration will contribute towards discharging any liability of the temporary work agency to pay remuneration under paragraph (1), and vice versa.

Article 85ZP: Right to unpaid time off to attend adoption appointments: agency workers

Paragraph (1) creates a right for an employed adopter who has been notified by an adoption agency that a child is, or is expected to be, placed for adoption with him or her and another person, to take time off to attend an adoption appointment, provided he or she has elected to take time off under paragraph (1)(b).

Paragraph (2) provides that an employee may not elect to take time off under paragraph (1) if he or she has already elected to take paid time off under Article 85ZN, or if the other adopter has already elected to take unpaid time off under paragraph (1)(b) or under Article 85ZL(1)(b).

Paragraph (3) provides that an agency worker is not entitled to take time off to attend adoption appointments on or after the date of the child’s placement for adoption with the employee.

Paragraphs (4) and (5) limit the number of adoption appointments that may be taken to two appointments of six and a half hours each.

Paragraph (6) provides that the adoption appointment must have been arranged by or at the request of the adoption agency which made the notification of the placement or the expected placement for adoption.

Paragraph (7) provides that an employee is not entitled to take time off unless he or she provides to the temporary work agency or hirer (upon request) a document showing the date and time of the adoption appointment in question and that it has been arranged by an adoption agency, and a signed declaration that he or she has made an election for the purposes of paragraph (1)(b). Per paragraph (8), the declaration or document may be in electronic form.

Paragraph (9) makes provision to modify the operation of Article 85ZP where more than one child is, or is expected to be, placed as part of the same arrangement (for example, where siblings are to be placed with the same adopter). Where the adoption appointments relate to the adoption of more than one child, the effect is that the election under paragraph (1)(b) relates to all the children; the maximum number of adoption appointments remains two in total; and the date after which no adoption appointments can be taken is the placement date of the first child.

Article 85ZQ: Complaint to industrial tribunal: agency workers

Paragraph (1) provides that an agency worker may complain to an industrial tribunal if the temporary work agency has unreasonably refused time off under Article 85ZN or 85ZP to attend an adoption appointment or has failed to pay amounts due under Article 85ZO. Paragraph (2) provides that an agency worker may also make a complaint that the hirer has unreasonably refused to let him or her take time off. The complaint must be made within the time limit designated in paragraph (3), normally three months.

If the complaint is substantiated the tribunal, per paragraph (4), must make a declaration accordingly. If time off has been refused, the tribunal must also order the temporary work agency or the hirer to pay the agency worker twice the amount to which he or she would have been entitled, per paragraphs (5), (7) and (8). If there has been a failure on the part of the temporary work agency to pay all or part of the amount due in respect of time off, the tribunal under paragraph (5) must order the temporary work agency to pay the due amount to the agency worker. In ordering a payment under paragraph (5) or (7), the tribunal under paragraph (9) will determine the proportion to be paid, respectively, by the temporary work agency and the hirer in accordance with its assessment of the culpability of each for the infringement.

Article 85ZR: Agency workers: supplementary

Paragraph (1) provides that the rights to paid and unpaid time off, and the right to present a complaint to a tribunal, do not apply if the agency worker has not completed the qualifying period or if there is a break between assignments. Paragraph (2) makes clear that the rights to paid and unpaid time off do not impose any duty on the hirer or temporary work agency which extends beyond the original intended duration of the assignment. Paragraph (3) makes clear that if a person is entitled to take paid or unpaid time off as an employee, then they are excluded from taking paid time or unpaid time off as an agency worker.

Article 85ZS: Entitlement: prospective adopters with whom looked after children are placed

Article 85ZS, at paragraph (4), provides for Articles 85ZJ, 85ZL, 85ZN and 85ZP to apply to employees and agency workers who are expecting to have a child placed with them under a FFA arrangement.

In accordance with paragraphs (1) to (3), such an arrangement is one where a child is placed by a competent authority (a Health and Social Care Trust) with an approved foster parent who is also an approved prospective adopter, where a decision is pending or has already been taken that adoption is in the child’s best interests. In accordance with paragraph (3)(b), regulations may specify that certain conditions must also be satisfied, thereby allowing the regulations to set a specific point at which entitlement will be triggered.

Paragraph (5) provides that where entitlement has been exercised under this Article, then entitlement cannot subsequently be exercised under Articles 85ZJ, 85ZL, 85ZN or 85ZP.

Clause 18: Right not to be subjected to detriment: agency workers

Clause 18 amends the ERO to provide that agency workers may not be subjected to detriment as a result of exercising the right to take time off work for ante-natal appointments or adoption appointments.

Subsection (2) amends Article 70C of the ERO to give agency workers a right not to be subjected to a detriment by the temporary work agency or hirer on certain grounds. The grounds are that the agency worker took or sought to take time off for an ante-natal appointment; as a pregnant woman, received or sought to receive remuneration in respect of such time off; took or sought to take time off for an adoption appointment; or, as a primary adopter, received or sought to receive remuneration in respect of such time off.

Subsection (3) amends Article 71 of the ERO to allow an agency worker who has been subjected to such a detriment to present a complaint to an industrial tribunal. It is for the temporary work agency or the hirer to show the ground on which any act or deliberate failure to act was done.

Subsection (4) amends Article 72 of the ERO to provide that if such a complaint is well-founded, the tribunal will make a declaration to that effect and may award compensation to be paid to the agency worker by the temporary work agency, the hirer, or both.

PART 4: OTHER EMPLOYMENT RIGHTS: MISCELLANEOUS

Clause 19: Flexible working: removal of requirement to be a carer

Clause 19 removes the requirement that an employee must have parental or caring responsibility in order to make a request to an employer to change the employee's terms and conditions with respect to hours and location of work. The effect is to extend the right to request flexible working to all employees who have the necessary period of service (currently 26 weeks).

Subsection (2) repeals section 112F(1)(b) of the ERO which requires an employee to be responsible for the care of a child or in certain cases a person over the age of 18 in order to make a request for flexible working. Subsection (3) repeals other provisions which are no longer necessary following the removal of the requirement to be the carer of a child or adult.

Clause 20: Procedure for regulations as to prescribed amount of annual leave

Clause 20 makes a technical amendment to Article 15 of the Work and Families (Northern Ireland) Order 2006 which empowers the Department, by regulations, to make provision conferring the right, except in prescribed cases, to a prescribed amount of annual leave in each leave year.

The amendment replaces the requirement for such regulations to be subject to the Northern Ireland Assembly's confirmatory procedure with a requirement for them to be subject instead to the draft affirmative procedure. This ensures that it will be possible to develop a single set of working time regulations and secure approval through a single Assembly process.

PART 5: GENERAL PROVISIONS

Clause 21: Supplementary, incidental and consequential etc. provision

Clause 21 empowers the Department to make supplementary, incidental, consequential, transitional, transitory or saving provision to give the remaining provisions effect. Subsection (5) makes additions, substitutions and omissions to or from statutory provisions subject to the draft affirmative procedure before the Northern Ireland Assembly. Other provision, in accordance with subsection (4), is subject to the negative procedure.

Clause 22: Repeals

Clause 22 gives effect to the repeals in Schedule 2.

Schedule 2: Repeals

Schedule 2 repeals a range of statutory provisions which are primarily associated with, and consequential upon, the abolition of additional paternity leave and additional statutory paternity pay and the removal of the requirement that an employee must have parental or caring responsibilities in order to make a request for flexible working arrangements.

Clause 23: Commencement

Clause 23 provides that the Department may make commencement orders bringing the provisions of the Bill into operation on one or more dates. Subsection (2) provides for those orders to make transitional, transitory or saving provisions.

Clause 24: Short title

Clause 24 provides for the short title of the Work and Families Act (Northern Ireland) 2014.

FINANCIAL EFFECTS OF THE BILL

19. One-off transitional costs to government of the statutory pay measures for working parents will be in the region of £200,000, associated with preparation of systems in support of the new rights’ implementation. These costs, falling to HMRC, are essentially notional as HMRC is already undertaking preparatory work for the introduction of the same systems in Great Britain.

20. There are annually recurring costs to government of just under £300,000, associated with the facility for employers to secure reimbursement for the new statutory payments either through PAYE deductions or through advance funding from HMRC.

21. Changes to the right to request flexible working have no direct costs to government other than in its role as an employer (as discussed below).

22. The technical amendment to working time provision has no cost to government.

HUMAN RIGHTS ISSUES

23. The Bill’s provisions engage Article 8 of the European Convention on Human Rights (right to respect for private and family life). A number of other international human rights standards are also directly relevant, including the United Nations Convention on the Elimination of Discrimination Against Women and the United Nations Convention on the Rights of the Child.

24. The Bill’s provisions are intended to lead to positive outcomes, in particular, for many employed parents, particularly women, and their children. No adverse human rights impacts arise.

EQUALITY IMPACT ASSESSMENT

25. A range of minor positive equality impacts have been identified, particularly for women, parents and children as a result of the proposed changes.

26. However, some concerns were raised that extending the right to request flexible working in the manner proposed could dilute the right’s effectiveness amongst its pre-existing beneficiaries, namely employed parents and carers of adults.

27. The Department considered three mitigating options in response, namely a “reasonableness” based process supported by a code of practice and guidance (as envisaged in Great Britain); a system for prioritising the requests of parents and carers over those of other employees; and retention of the current statute based model, supported by revised guidance materials.

28. The first option is not appropriate as it is against the wishes of most consultees and could lead to greater uncertainty as to how flexible working requests ought to be handled. The second option would be administratively burdensome for employers, would dilute the right’s broader appeal, and could be counterproductive in entrenching views about the role and needs of parents and carers, particularly women, in employment.

29. The third option was selected on the basis that, under it, employers will continue to approach requests having regard to no other factor than whether the business can accommodate a request. Employees, as now, will need to set out persuasively in their request how their proposed work pattern can work for the business. Examples of well constructed requests, and the factors employers should consider in dealing with them, will be set out in revised guidance developed in conjunction with stakeholders. The Department will monitor uptake of the right to verify that it is not having unintended impacts of the kind referenced above.

30. No other equality impacts have been identified.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

31. In respect of the changes to pay and leave provisions for working parents, one-off transitional costs to employers of almost £1.5m in management time are anticipated. These are associated with changes to payroll and human resource systems.

32. On an annually recurring basis, the exercise by employees of these new rights is expected to cost employers across Northern Ireland in the region of £750,000.

33. One-off transitional costs across all employers, mainly associated with management time in addressing implementation of the extended right to request flexible working, are likely to be lower than £450,000. Net annually recurring costs, having accounted for productivity gains from greater use of flexible working, will be approximately the same at around £450,000.

34. Less than half of the predicted costs will fall to be met by the public sector as an employer.

35. No costs are associated with the Bill’s technical amendment to facilitate the consolidation of working time regulations.

LEGISLATIVE COMPETENCE

36. The Minister for Employment and Learning had made the following statement under section 9 of the Northern Ireland Act 1998:

“In my view the Work and Families Bill would be within the legislative competence of the Northern Ireland Assembly.”

SECRETARY OF STATE CONSENT

37. The Secretary of State has consented under section 8 of the Northern Ireland Act 1998 to the Assembly considering the Bill.

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