The Additional Paternity Leave Regulations 2010
| Jurisdiction | UK Non-devolved |
| Citation | SI 2010/1055 |
| Year | 2010 |
2010 No. 1055
Terms And Conditions Of Employment
The Additional Paternity Leave Regulations 2010
Made 24th March 2010
Coming into force 6th April 2010
The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 47C(2), 80AA, 80BB, 80C, 80D, 80E and 99 of the Employment Rights Act 19961.
In accordance with section 236(3)2of the Employment Rights Act 1996, a draft of these Regulations was laid before Parliament and approved by a resolution of each House of Parliament.
PART 1
GENERAL
Citation, commencement and extent
1. These Regulations may be cited as the Additional Paternity Leave Regulations 2010 and shall come into force on 6th April 2010.
Interpretation
2.—(1) In these Regulations—
“the 1996 Act” means the Employment Rights Act 1996;
“additional paternity leave” means leave under regulation 4 or regulation 14;
“adopter”, in relation to a child, means a person who has been matched with the child for adoption and who has elected to take adoption leave in order to care for the child;
“adoption agency” has the meaning given, in relation to England and Wales, by section 2 of the Adoption and Children Act 20023, and in relation to Scotland, by section 119(1) of the Adoption and Children (Scotland) Act 20074;
“adoption leave” means ordinary adoption leave under section 75A of the 1996 Act or additional adoption leave under section 75B of that Act5;
“child” means a person who is, or when placed with an adopter for adoption was, under the age of eighteen;
“expected week”, in relation to the birth of a child, means the week beginning with midnight between Saturday and Sunday, in which it is expected that the child will be born;
“job”, in relation to an employee returning after additional paternity leave, means the nature of the work which the employee is employed to do in accordance with the employee’s contract of employment and the capacity and place in which the employee is so employed;
“maternity allowance” has the meaning given in section 35(1) of the Social Security Contributions and Benefits Act 19926;
“maternity leave” means ordinary maternity leave under section 71 of the 1996 Act or additional maternity leave under section 73 of that Act7;
“parental leave” means leave under regulation 13(1) of the Maternity and Parental Leave etc Regulations 19998;
“partner” in relation to a child’s mother or adopter, means a person (whether of a different sex or the same sex) who lives with the mother or adopter and the child in an enduring family relationship but is not a relative of the mother or adopter of a kind specified in paragraph (2);
“processing”, in relation to information, has the meaning given in section 1(1) of the Data Protection Act 19989;
“statutory adoption pay” has the meaning given in section 171ZL of the Social Security Contributions and Benefits Act 199210;
“statutory maternity pay” has the meaning given in section 164(1) of the Social Security Contributions and Benefits Act 1992; and
“statutory leave” means leave provided for in Part 8 of the 1996 Act.
(2) The relatives of a child’s mother or adopter referred to in the definition of “partner” in paragraph (1) are the mother’s or adopter’s parent, grandparent, sister, brother, aunt or uncle.
(3) References to relationships in paragraph (2)—
(a)
(a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for the adoption, and
(b)
(b) include the relationship of a child with the child’s adoptive, or former adoptive parents, but do not include any other adoptive relationships.
(4) For the purposes of these Regulations—
(a)
(a) a person is matched with a child for adoption when an adoption agency decides that that person would be a suitable adoptive parent for the child;
(b)
(b) a person is notified of having been matched with a child on the date on which the person receives notification of the agency’s decision, under regulation 33(3)(a) of the Adoption Agencies Regulations 200511, regulation 28(3) of the Adoption Agencies (Wales) Regulations 200512or regulation 8(5) of the Adoption Agencies (Scotland) Regulations 200913.
(5) A reference in any provision of these Regulations to a period of continuous employment is to a period computed in accordance with Chapter 1 of Part 14 of the 1996 Act, as if that provision were a part of that Act.
Application
3.—(1) The provisions relating to additional paternity leave under regulation 4 have effect only in relation to children whose expected week of birth begins on or after 3rd April 2011.
(2) The provisions relating to additional paternity leave under regulation 14 have effect only in relation to children matched with a person who is notified of having been matched on or after 3rd April 2011.
(3) Regulation 33 (protection from detriment) has effect only in relation to an act or failure to act which takes place on or after 6th April 2010.
(4) For the purposes of paragraph (3)—
(a)
(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period, and
(b)
(b) a failure to act is to be treated as done when it is decided upon.
(5) For the purposes of paragraph (4), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act—
(a)
(a) when the employer does an act inconsistent with doing the failed act, or
(b)
(b) if the employer has done no such inconsistent act, when the period expires within which the employer might reasonably have been expected to do the failed act if it was to be done.
(6) Regulation 34 (unfair dismissal) has effect only in relation to dismissals where the effective date of termination (within the meaning of section 97 of the 1996 Act14) falls on or after 6th April 2010.
PART 2
ADDITIONAL PATERNITY LEAVE (BIRTH)
Entitlement to additional paternity leave (birth)
4.—(1) An employee (“P”) is entitled to be absent from work for the purpose of caring for a child (“C”) if—
(a)
(a) P satisfies the conditions specified in paragraph (2);
(b)
(b) P has complied with the requirements in regulation 6 and, where applicable, regulation 7; and
(c)
(c) C’s mother (“M”) satisfies the conditions specified in paragraph (5) and has signed the mother declaration referred to in regulation 6.
(2) The conditions referred to in paragraph (1)(a) are that P—
(a)
(a) has been continuously employed with an employer for a period of not less than 26 weeks ending with the relevant week;
(b)
(b) remains in continuous employment with that employer until the week before the first week of P’s additional paternity leave;
(c)
(c) is either—
(i) C’s father, or
(ii) married to or the partner or civil partner of M, but not C’s father; and
(d)
(d) has, or expects to have, the main responsibility (apart from any responsibility of M) for the upbringing of C.
(3) The references in this regulation to the relevant week are to the week immediately preceding the 14th week before C’s expected week of birth.
(4) P shall be treated as having satisfied the condition in paragraph (2)(a) on the date of C’s birth, notwithstanding the fact that P has not then been continuously employed for the period referred to in that paragraph, where—
(a)
(a) the date on which C is born is earlier than the relevant week; and
(b)
(b) P would have been continuously employed for such a period if P’s employment had continued until the relevant week.
(5) The conditions referred to in paragraph (1)(c) are that M—
(a)
(a) is entitled by reference to becoming pregnant with C to one or more of the following—
(i) maternity leave;
(ii) statutory maternity pay; or
(iii) maternity allowance; and
(b)
(b) has, or is treated as having, returned to work under regulation 25.
(6) P’s entitlement to leave under this regulation shall not be affected by the birth, or expected birth, of more than one child as the result of the same pregnancy.
Options in respect of leave under regulation 4
5.—(1) P may take leave under regulation 4 at any time within the period which begins 20 weeks after the date on which C is born and ends 12 months after that date.
(2) The minimum period of leave which may be taken is two weeks and the maximum period is 26 weeks.
(3) The leave must be taken in multiples of complete weeks and must be taken as one continuous period.
(4) The leave may not be taken until eight weeks after the date P gave leave notice under regulation 6(1).
(5) This regulation is subject to regulation 24 (disrupted placement or death of a child).
Notice and evidential requirements for leave under regulation 4
6.—(1) P must, not less than eight weeks before the start date chosen by P for the period of leave, give P’s employer (“E”)—
(a)
(a) a leave notice;
(b)
(b) an employee declaration; and
(c)
(c) a mother declaration.
(2) In this regulation—
(a)
(a) “a leave notice” means a written notice specifying—
(i) the week which was C’s expected week of birth;
(ii) C’s date of birth;
(iii) the dates P has chosen in accordance with regulation 5 as the start date and end date for the period of leave.
(b)
(b) “an employee declaration” means a written declaration signed by P, stating—
(i) that the purpose of the period of leave will be to care for C, and
(ii) that P satisfies the conditions in regulation 4(2)(c) and (d).
(c)
(c) “mother declaration” means a written declaration by M stating—
(i) M’s name and address;
(ii) the date M intends to return to work (within the meaning of regulation 25);
(iii) M’s National Insurance number;
(iv) that P satisfies the conditions in regulation 4(2)(c) and (d);
(v) that P is to M’s knowledge the only person exercising the entitlement to...
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