Made | 13th November 2002 | ||
Laid before Parliament | 15th November 2002 | ||
Coming into force | 8th December 2002 |
1. | Citation and commencement |
2. | Interpretation |
3. | Application |
4. | Conditions of entitlement to statutory paternity pay (birth): relationship with newborn child and child's mother |
5. | Modification of entitlement conditions: early birth |
6. | Period of payment of statutory paternity pay (birth) |
7. | Additional notice requirements for statutory paternity pay (birth) |
8. | Qualifying period for statutory paternity pay (birth) |
9. | Evidence of entitlement to statutory paternity pay (birth) |
10. | Entitlement to statutory paternity pay (birth) where there is more than one employer |
11. | Conditions of entitlement to statutory paternity pay (adoption): relationship with child and with person with whom the child is placed for adoption |
12. | Period of payment of statutory paternity pay (adoption) |
13. | Additional notice requirements for statutory paternity pay (adoption) |
14. | Qualifying period for statutory paternity pay (adoption) |
15. | Evidence of entitlement to statutory paternity pay (adoption) |
16. | Entitlement to statutory paternity pay (adoption) where there is more than one employer |
17. | Work during a statutory paternity pay period |
18. | Cases where there is no liability to pay statutory paternity pay |
19. | Statutory paternity pay and contractual remuneration |
20. | Avoidance of liability for statutory paternity pay |
21. | Adoption pay period |
22. | Adoption pay period in cases where adoption is disrupted |
23. | Additional notice requirements for statutory adoption pay |
24. | Evidence of entitlement to statutory adoption pay |
25. | Entitlement to statutory adoption pay where there is more than one employer |
26. | Work during an adoption pay period |
27. | Cases where there is no liability to pay statutory adoption pay |
28. | Statutory adoption pay and contractual remuneration |
29. | Termination of employment before start of adoption pay period |
30. | Avoidance of liability for statutory adoption pay |
31. | Introductory |
32. | Treatment of persons as employees |
33. | Continuous employment |
34. | Continuous employment and unfair dismissal |
35. | Continuous employment and stoppages of work |
36. | Change of employer |
37. | Reinstatement after service with the armed forces etc |
38. | Treatment of two or more employers or two or more contracts of service as one |
39. | Meaning of "earnings" |
40. | Normal weekly earnings |
41. | Payment of statutory paternity pay and statutory adoption pay |
42. | Time when statutory paternity pay and statutory adoption pay are to be paid |
43. | Liability of the Board to pay statutory paternity pay or statutory adoption pay |
44. | Liability of the Board to pay statutory adoption pay in cases of legal custody or imprisonment |
45. | Payments by the Board |
46. | Persons unable to act |
47. | Service of notices by post |
(2) For the purposes of these Regulations -
Application
3.
- (1) Subject to the provisions of Part 12ZA of the Act (statutory paternity pay) and of these Regulations, there is entitlement to -
(b) statutory paternity pay (adoption) in respect of children -
(2) Subject to the provisions of Part 12ZB of the Act (statutory adoption pay) and of these Regulations, there is entitlement to statutory adoption pay in respect of children -
Period of payment of statutory paternity pay (birth)
6.
- (1) Subject to paragraph (2) and regulation 8, a person entitled to statutory paternity pay (birth) may choose the statutory paternity pay period to begin on -
(2) In a case where statutory paternity pay (birth) is payable in respect of a child whose expected week of birth begins before 6th April 2003, the statutory paternity pay period shall begin on a predetermined date, specified by the person entitled to such pay in a notice under section 171ZC(1) of the Act, which is at least 28 days after the date on which that notice was given, unless the person liable to pay statutory paternity pay (birth) agrees to the period beginning earlier.
(3) A person may choose for statutory paternity pay (birth) to be paid in respect of a period of a week.
(4) A choice made in accordance with paragraph (1) or (2) is not irrevocable, but where a person subsequently makes a different choice in relation to the beginning of the statutory pay period, section 171ZC(1) of the Act shall apply to it.
Additional notice requirements for statutory paternity pay (birth)
7.
- (1) Where the choice made by a person in accordance with paragraph (1) of regulation 6 and notified in accordance with section 171ZC(1) of the Act is that mentioned in sub-paragraph (a) or (b) of that paragraph, the person shall give further notice to the person liable to pay him statutory paternity pay, as soon as is reasonably practicable after the child's birth, of the date the child was born;
(2) Where the choice made by a person in accordance with paragraph (1) of regulation 6 and notified in accordance with section 171ZC(1) of the Act is that specified in sub-paragraph (c) of that paragraph, and the date of the child's birth is later than the date so specified, the person shall, if he wishes to claim statutory paternity pay (birth), give notice to the person liable to pay it, as soon as is reasonably practicable, that the period in respect of which statutory paternity pay is to be paid shall begin on a date different from that originally chosen by him.
(3) That date may be any date chosen in accordance with paragraph (1) of regulation 6.
Qualifying period for statutory paternity pay (birth)
8.
The qualifying period for the purposes of section 171ZE(2) of the Act (period within which the statutory paternity pay period must occur) is a period which begins on the date of the child's birth and ends -
Evidence of entitlement to statutory paternity pay (birth)
9.
- (1) A person shall provide evidence of his entitlement to statutory paternity pay (birth) by providing in writing to the person who will be liable to pay him statutory paternity pay (birth) -
(2) The information referred to in paragraph (1)(a) is as follows -
(3) The information and declaration referred to in paragraph (1) shall be provided at least 28 days before the date mentioned in sub-paragraph (c) of paragraph (2) or, if that is not reasonably practicable, as soon as is reasonably practicable thereafter.
(4) Where the person who will be liable to pay statutory paternity pay (birth) so requests, the person entitled to it shall inform him of the date of the child's birth within 28 days, or as soon as is reasonably practicable thereafter.
Entitlement to statutory paternity pay (birth) where there is more than one employer
10.
Statutory paternity pay (birth) shall be payable to a person in respect of a statutory pay week during any part of which he works only for an employer -
(2) For the purposes of paragraph (1), "partner" means a person (whether of a different sex or the same sex) who lives with the adopter and the child in an enduring family relationship but is not a relative of the adopter of a kind specified in paragraph (3).
(3) References to relationships in paragraph (2) -
Period of payment of statutory paternity pay (adoption)
12.
- (1) Subject to paragraph (2) and regulation 14, a person entitled to statutory paternity pay (adoption) may choose the statutory paternity pay period to begin on -
(2) In a case where statutory paternity pay (adoption) is payable in respect of a child matched with an adopter who is notified of having been matched before 6th April 2003, the statutory paternity pay period shall begin on a predetermined date, specified by the person entitled to such pay in a notice under section 171ZC(1) of the Act, which is at least 28 days after the date on which that notice was given, unless the person liable to pay statutory paternity pay (birth) agrees to the period beginning earlier.
(3) A person may choose for statutory paternity pay (adoption) to be paid in respect of a period of a week.
(4) A choice made in accordance with paragraph (1) is not irrevocable, but where a person subsequently makes a different choice in relation to the beginning of the statutory paternity pay period, section 171ZC(1) of the Act shall apply to it.
Additional notice requirements for statutory paternity pay (adoption)
13.
- (1) Where the choice made by a person in accordance with paragraph (1) of regulation 12 and notified in accordance with section 171ZC(1) of the Act is that mentioned in sub-paragraph (a) or (b) of that paragraph, the person shall give further notice to the person liable to pay him statutory paternity pay as soon as is reasonably practicable of the date on which the placement occurred.
(2) Where the choice made by a person in accordance with paragraph (1) of regulation 12 and notified in accordance with section 171ZC(1) of the Act is that mentioned in sub-paragraph (c) of that paragraph, or a date is specified under paragraph (2) of that regulation, and the child is placed for adoption later than the date so specified, the person shall, if he wishes to claim statutory paternity pay (adoption), give notice to the person liable to pay it, as soon as is reasonably practicable, that the period in respect of which statutory paternity pay is to be paid shall begin on a date different from that originally chosen by him.
(3) That date may be any date chosen in accordance with paragraph (1) of regulation 12.
Qualifying period for statutory paternity pay (adoption)
14.
The qualifying period for the purposes of section 171ZE(2) of the Act (period within which the statutory pay period must occur) is a period of 56 days beginning with the date of the child's placement for adoption.
Evidence of entitlement for statutory paternity pay (adoption)
15.
- (1) A person shall provide evidence of his entitlement to statutory paternity pay (adoption) by providing in writing to the person who will be liable to pay him statutory paternity pay (adoption) -
(2) The information referred to in paragraph (1) is as follows -
(3) The information and declarations referred to in paragraph (1) shall be provided to the person liable to pay statutory paternity pay at least 28 days before the date mentioned in sub-paragraph (c) of paragraph (2) or, if that is not reasonably practicable, as soon as is reasonably practicable thereafter.
(4) Where the person who will be liable to pay statutory paternity pay (adoption) so requests, the person entitled to it shall inform him of the date of the child's placement within 28 days, or as soon as is reasonably practicable thereafter.
Entitlement to statutory paternity pay (adoption) where there is more than one employer
16.
Statutory paternity pay (adoption) shall be payable to a person in respect of a statutory pay week during any part of which he works only for an employer -
Statutory paternity pay and contractual remuneration
19.
For the purposes of section 171ZG(1) and (2) of the Act, the payments which are to be treated as contractual remuneration are sums payable under a contract of service -
Avoidance of liability for statutory paternity pay
20.
- (1) A former employer shall be liable to make payments of statutory paternity pay to a former employee in any case where the employee had been employed for a continuous period of at least 8 weeks and his contract of service was brought to an end by the former employer solely, or mainly, for the purpose of avoiding liability for statutory paternity pay.
(2) In a case falling within paragraph (1) -
(2) In a case where statutory adoption pay is payable in respect of a child matched with an adopter who is notified of having been matched before 6th April 2003, the statutory adoption pay period shall begin on a predetermined date which is -
(3) Subject to paragraph (4), where the choice made is that mentioned in sub-paragraph (b) of paragraph (1) or in a case where paragraph (2) applies, the adoption pay period shall, unless the employer agrees to the adoption pay period beginning earlier, begin no earlier than 28 days after notice under section 171ZL(6) of the Act has been given.
(4) Where the beginning of the adoption pay period determined in accordance with paragraph (3) is later than the date of placement, it shall be the date of placement.
(5) Subject to regulation 22, the duration of any adoption pay period shall be a continuous period of 26 weeks.
(6) A choice made under paragraph (1), or a date specified under paragraph (2), is not irrevocable, but where a person subsequently makes a different choice, section 171ZL(6) of the Act shall apply to it.
Adoption pay period in cases where adoption is disrupted
22.
- (1) Where -
(b) the adoption pay period has begun prior to the date the child has been placed for adoption, but the placement does not take place,
the adoption pay period shall terminate in accordance with the provisions of paragraph (2).
(2) The adoption pay period shall, in a case falling within paragraph (1), terminate 8 weeks after the end of the week specified in paragraph (3).
(3) The week referred to in paragraph (2) is -
(4) For the purposes of paragraph (3), "week" means a period of seven days beginning with Sunday.
Additional notice requirements for statutory adoption pay
23.
- (1) Where a person gives notice under section 171ZL(6) of the Act he shall at the same time give notice of the date on which the child is expected to be placed for adoption.
(2) Where the choice made in accordance with paragraph (1) of regulation 21 and notified in accordance with section 171ZL(6) of the Act is that mentioned in sub-paragraph (a) of that paragraph, the person shall give further notice to the person liable to pay him statutory adoption pay as soon as is reasonably practicable of the date the child is placed for adoption.
Evidence of entitlement to statutory adoption pay
24.
- (1) A person shall provide evidence of his entitlement to statutory adoption pay by providing to the person who will be liable to pay it -
(2) The information referred to in paragraph (1) is -
(3) The information and declaration referred to in paragraph (1) shall be provided to the person liable to pay statutory adoption pay at least 28 days before the date chosen as the beginning of the adoption pay period in accordance with paragraph (1) of regulation 21, or, if that is not reasonably practicable, as soon as is reasonably practicable thereafter.
Entitlement to statutory adoption pay where there is more than one employer
25.
Statutory adoption pay shall be payable to a person in respect of a week during any part of which he works only for an employer -
Work during an adoption pay period
26.
- (1) Where, in a case where statutory adoption pay is being paid to a person who works during the adoption pay period for an employer who is not liable to pay him statutory adoption pay and who does not fall within paragraph (b) of regulation 25, there shall be no liability to pay statutory adoption pay in respect of any remaining part of the adoption pay period.
(2) In a case falling within paragraph (1), the person shall notify the person liable to pay statutory adoption pay within 7 days of the first day during which he works during the adoption pay period.
(3) The notification contained in paragraph (2) shall be in writing if the person who has been liable to pay statutory adoption pay so requests.
Cases where there is no liability to pay statutory adoption pay
27.
- (1) There shall be no liability to pay statutory adoption pay in respect of any week -
(2) There shall be liability to pay statutory adoption pay in respect of any week during any part of which the person entitled to it is detained in legal custody where that person -
Statutory adoption pay and contractual remuneration
28.
For the purposes of section 171ZP(4) and (5) of the Act, the payments which are to be treated as contractual remuneration are sums payable under a contract of service -
Termination of employment before start of adoption pay period
29.
- (1) Where the employment of a person who satisfies the conditions of entitlement to statutory adoption pay terminates for whatever reason (including dismissal) before the adoption pay period chosen in accordance with regulation 21 has begun, the period shall begin 14 days before the expected date of placement or, where the termination occurs on, or within 14 days before, the expected date of placement, on the day immediately following the last day of his employment.
(2) In a case falling within paragraph (1), the notice requirements set out in section 171ZL(6) of the Act and these Regulations shall not apply.
Avoidance of liability for statutory adoption pay
30.
- (1) A former employer shall be liable to make payments of statutory adoption pay to a former employee in any case where the employee had been employed for a continuous period of at least 8 weeks and his contract of service was brought to an end by the former employer solely, or mainly, for the purpose of avoiding liability for statutory adoption pay.
(2) In a case falling within paragraph (1) -
shall not be treated as an employee for the purposes of Parts 12ZA and 12ZB of the Act.
Continuous employment
33.
- (1) Subject to the following provisions of this regulation, where in any week a person is, for the whole or part of the week -
and returns to work for his employer after the incapacity for or absence from work, that week shall be treated for the purposes of sections 171ZA, 171ZB and 171ZL of the Act as part of a continuous period of employment with that employer, notwithstanding that no contract of service exists with that employer in respect of that week.
(2) Incapacity for work which lasts for more than 26 consecutive weeks shall not count for the purposes of paragraph (1)(a).
(3) Where a person -
(b) is absent from work because of incapacity arising from some specific disease or bodily or mental disablement,
then in that case paragraph (1) shall apply as if the words "and returns to work for his employer after the incapacity for or absence from work," were omitted and paragraph (4) shall not apply.
(4) Where a person is employed under a contract of service for part only of the relevant week within the meaning of subsection (3) of section 171ZL of the Act (entitlement to statutory adoption pay), the whole of that week shall count in computing a period of continuous employment for the purposes of that section.
Continuous employment and unfair dismissal
34.
- (1) This regulation applies to a person in relation to whose dismissal an action is commenced which consists -
(2) If, in consequence of an action of the kind specified in paragraph (1), a person is reinstated or re-engaged by his employer or by a successor or associated employer of that employer, the continuity of his employment shall be preserved for the purposes of Part 12ZA or, as the case may be, Part 12ZB of the Act, and any week which falls within the interval beginning with the effective date of termination and ending with the date of reinstatement or re-engagement, as the case may be, shall count in the computation of his period of continuous employment.
(3) In this regulation -
Continuous employment and stoppages of work
35.
- (1) Where, for any week or part of a week a person does not work because there is a stoppage of work due to a trade dispute within the meaning of section 35(1) of the Jobseekers Act 1995[13] at his place of employment, the continuity of his employment shall, subject to paragraph (2), be treated as continuing throughout the stoppage but, subject to paragraph (3), no such week shall count in the computation of his period of employment.
(2) Subject to paragraph (3), where during the stoppage of work a person is dismissed from his employment, the continuity of his employment shall not be treated in accordance with paragraph (1) as continuing beyond the commencement of the day he stopped work.
(3) The provisions of paragraph (1), to the extent that they provide that a week in which the stoppage of work occurred shall not count in the computation of a period of employment, and paragraph (2) shall not apply to a person who proves that at no time did he have a direct interest in the trade dispute in question.
Change of employer
36.
A person's employment shall, notwithstanding a change of employer, be treated as continuous employment with the second employer where -
Reinstatement after service with the armed forces etc.
37.
If a person who is entitled to apply to his employer under the Reserve Forces (Safeguard of Employment) Act 1985[14] enters the employment of that employer within the 6-month period mentioned in section 1(4)(b) of that Act, his previous period of employment with that employer (or if there was more than one such period, the last of those periods) and the period of employment beginning in that 6-month period shall be treated as continuous.
Treatment of two or more employers or two or more contracts of service as one
38.
- (1) In a case where the earnings paid to a person in respect of two or more employments are aggregated and treated as a single payment of earnings under regulation 15(1) of the Contributions Regulations, the employers of that person in respect of those employments shall be treated as one for the purposes of Part 12ZA or, as the case may be, Part 12ZB of the Act.
(2) Where two or more employers are treated as one under the provisions of paragraph (1), liability for statutory paternity pay or, as the case may be, statutory adoption pay, shall be apportioned between them in such proportions as they may agree or, in default of agreement, in the proportions which the person's earnings from each employment bear to the amount of the aggregated earnings.
(3) Where two or more contracts of service exist concurrently between one employer and one employee, they shall be treated as one for the purposes of Part 12ZA or, as the case may be, Part 12ZB of the Act, except where, by virtue of regulation 14 of the Contributions Regulations, the earnings from those contracts of service are not aggregated for the purposes of earnings-related contributions.
Meaning of "earnings"
39.
- (1) For the purposes of section 171ZJ(6) (normal weekly earnings for the purposes of Part 12ZA of the Act) and of section 171ZS(6) of the Act (normal weekly earnings for the purposes of Part 12ZB of the Act), the expression "earnings" shall be construed in accordance with the following provisions of this regulation.
(2) The expression "earnings" refers to gross earnings and includes any remuneration or profit derived from a person's employment except any payment or amount which is -
(3) For the avoidance of doubt, "earnings" includes -
Normal weekly earnings
40.
- (1) For the purposes of Part 12ZA and Part 12ZB of the Act, a person's normal weekly earnings shall be calculated in accordance with the following provisions of this regulation.
(2) In this regulation -
(3) Subject to paragraph (4), the relevant period for the purposes of section 171ZJ(6) and 171ZS(6) is the period between -
including the normal pay day mentioned in sub-paragraph (a) but excluding that first mentioned in sub-paragraph (b).
(4) In a case where a person has no identifiable normal pay day, paragraph (3) shall have effect as if the words "day of payment" were substituted for the words "normal pay day" in each place where they occur.
(5) In a case where a person has normal pay days at intervals of or approximating to one or more calendar months (including intervals of or approximating to a year) his normal weekly earnings shall be calculated by dividing his earnings in the relevant period by the number of calendar months in that period (or, if it is not a whole number, the nearest whole number), multiplying the result by 12 and dividing by 52.
(6) In a case to which paragraph (5) does not apply and the relevant period is not an exact number of weeks, the person's normal weekly earnings shall be calculated by dividing his earnings in the relevant period by the number of days in the relevant period and multiplying the result by 7.
(7) In any case where a person receives a back-dated pay increase which includes a sum in respect of a relevant period, normal weekly earnings shall be calculated as if such a sum was paid in that relevant period even though received after that period.
Payment of statutory paternity pay and statutory adoption pay
41.
Payments of statutory paternity pay and statutory adoption pay may be made in a like manner to payments of remuneration but shall not include payment in kind or by way of the provision of board or lodgings or of services or other facilities.
Time when statutory paternity pay and statutory adoption pay are to be paid
42.
- (1) In this regulation, "pay day" means a day on which it has been agreed, or it is the normal practice between an employer or former employer and a person who is or was an employee of his, that payments by way of remuneration are to be made, or, where there is no such agreement or normal practice, the last day of a calendar month.
(2) In any case where -
that amount of statutory paternity pay or statutory adoption pay shall be paid within the time specified in paragraph (3).
(3) Subject to paragraphs (4) and (5), the employer or former employer shall pay the amount not later than the first pay day after -
(4) Subject to paragraph (5), where it is impracticable, in view of the employer's or former employer's methods of accounting for and paying remuneration, for the requirement of payment referred to in paragraph (3) to be met by the pay day referred to in that paragraph, it shall be met not later than the next following pay day.
(5) Where the employer or former employer would not have remunerated the employee for his work in the week in question as early as the pay day specified in paragraph (3) or (if it applies) paragraph (4), the requirement of payment shall be met on the first day on which the employee would have been remunerated for his work in that week.
Liability of the Board to pay statutory paternity pay or statutory adoption pay
43.
- (1) Where -
then for any week in respect of which the employer was liable to make payments of statutory paternity pay or, as the case may be, statutory adoption pay but did not do so, and for any subsequent weeks in the paternity pay period or, as the case may be, adoption pay period, the liability to make those payments shall, notwithstanding sections 171ZD and 171ZM of the Act, be that of the Board and not the employer.
(2) Liability to make payments of statutory paternity pay or, as the case may be, statutory adoption pay shall, notwithstanding sections 171ZD and 171ZM of the Act, be a liability of the Board and not the employer as from the week in which the employer first becomes insolvent until the end of the paternity pay or adoption pay period.
(3) For the purposes of paragraph (2) an employer shall be taken to be insolvent if, and only if -
(b) in Scotland -
Liability of the Board to pay statutory adoption pay in cases of legal custody or imprisonment
44.
Where -
that liability shall, notwithstanding section 171ZM of the Act, be that of the Board and not the employer.
Payments by the Board
45.
Where the Board become liable in accordance with regulation 43 or 44 to make payments of statutory paternity pay or, as the case may be, statutory adoption pay to a person, the first payment shall be made as soon as reasonably practicable after they become so liable, and payments thereafter shall be made at weekly intervals, by means of an instrument of payment or by such other means as appears to the Board to be appropriate in the circumstance of any particular case.
Persons unable to act
46.
- (1) Where in the case of any person -
the Board may, upon written application to them by a person who, if a natural person, is over the age of 18, appoint that person to exercise, on behalf of the person unable to act, any right to which he may be entitled under Part 12ZA or, as the case may be, Part 12ZB of the Act and to deal on his behalf with any sums payable to him.
(2) Where the Board have made an appointment under paragraph (1) -
(3) Anything required by Part 12ZA or 12ZB of the Act to be done by or to any person who is unable to act may be done by or to the person appointed under this regulation to act on his behalf, and the receipt of the person so appointed shall be a good discharge to the person's employer or former employer for any sum paid.
Service of notices by post
47.
A notice given in accordance with the provisions of these Regulations in writing contained in an envelope which is properly addressed and sent by prepaid post shall be treated as having been given on the day on which it is posted.
Signed by authority of the Secretary of State for Trade and Industry
Alan Johnson,
Minister of State for Employment Relations, Industry and the Regions, Department of Trade and Industry
11th November 2002
The Commissioners of Inland Revenue hereby concur
Nick Montagu,
Ann Chant,
Two of the Commissioners of Inland Revenue
13th November 2002
Part 3 of the Regulations relates to statutory paternity pay payable in connection with an adoption. Regulations 11 to 16 contain provisions corresponding to those of regulations 4 to 10 relating to statutory paternity pay payable in connection with a birth.
Part 4 of the Regulations contains provisions relating to both types of statutory paternity pay:
Part 5 of the Regulations relates to statutory adoption pay:
Part 6 of the Regulations contains, apart from one provision relating only to statutory adoption pay, provisions relating to both statutory paternity pay and statutory adoption pay:
[2] 1992 c. 5. Section 5(5), concerning the applicability of section 5(1)(g), (i) and (p) was amended by paragraph 11 of Schedule 7 to the Employment Act 2002.back
[3] See section 173(5)(b) of the Social Security Administration Act 1992.back
[4] 1976 c. 36; section 1(4) was amended by paragraph 5 of Schedule 4 to the Care Standards Act 2000 (c. 36).back
[10] S.I. 1978/1689, amended by S.I. 1980/1713, 1984/350, 1990/1894, 1994/726, 1998/1728.back
[18] 1889 c. 39. Section 11A was inserted by the Bankruptcy (Scotland) Act 1985 (c. 66), Schedule 7, paragraph 4.back