The Additional Statutory Paternity Pay (General) Regulations 2010

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement the powers in the Work and Families Act 2006 (c. 18) (“the Act”) to introduce a new entitlement for employees who are fathers or who are the partners of mothers or adopters to receive a new statutory payment of additional statutory paternity pay from their employers. The relevant provisions are incorporated by the Act into the Social Security Contributions and Benefits Act 1992 (c. 4) (“the 1992 Act”).

Part 1 of the Regulations (regulations 1 to 3) is introductory. Regulation 3 sets out the general entitlement to additional statutory paternity pay where the relevant provisions of Part 12ZA of the 1992 Act and the provisions of the Regulations are satisfied.

Part 2 of the Regulations (regulations 4 to 11) relates to additional statutory paternity pay in connection with the birth of a child. Regulation 4(2) sets out the conditions regarding relationship with a child and the child’s mother which the applicant for additional statutory paternity pay must satisfy in order for his or her entitlement to arise. Regulation 4(3) sets out the conditions which the applicant must satisfy as regards employment before the expected week of the child’s birth and employment in the period immediately preceding the period in respect of which additional statutory paternity pay will be payable. Regulation 5 provides for the modification of these employment conditions in the case of an early birth. Regulation 6 sets out conditions which the mother must satisfy and these include the requirement that she has returned to work. Regulation 7 concerns the period in respect of which additional statutory paternity pay is payable. In broad terms (and subject to various conditions set out in regulation 7 and at section 171ZEE of the 1992 Act), the applicant may choose the dates on which this period is to begin and end. Regulation 8 provides for the process of applying for additional statutory paternity pay and sets out various requirements as to information and evidence which the applicant must provide to his or her employer.

Provision is also made at Part 2 for the payment of additional statutory paternity pay in connection with the birth of a child where the mother dies. Regulation 7(4) and (5) applies to a case in which the mother dies after the beginning of the period in respect of which additional statutory paternity pay is payable. It allows for a longer period in many such cases. Regulations 9 and 10 concern cases where the period in respect of which additional statutory paternity is payable has not already commenced when the mother dies. Regulation 9 concerns the various conditions which must be satisfied by the applicant in such circumstances and, also, the different pay period which will invariably apply in such cases.

Regulation 11 provides for the exceptional circumstances in which additional statutory paternity pay (in connection with the birth of a child) will be payable to a person even though he or she is working, albeit for another employer.

Part 3 of the Regulations (regulations 12 to 18) concerns additional statutory paternity pay payable in connection with an adoption. Its provisions correspond to those of regulations 4 to 11 relating to additional statutory paternity pay payable in connection with the birth of a child.

Part 4 of the Regulations (regulations 19 to 39) contains various general provisions which apply to both additional statutory paternity pay payable in connection with the birth of a child and to additional statutory paternity pay payable in connection with the adoption of a child. Regulation 19 sets out what is meant by a mother’s or adopter’s “returning to work” (additional statutory paternity pay is not payable if a mother or adopter, unless they have died, does not return to work). Regulation 20 provides for the termination (subject to a limited exception) of additional statutory paternity pay where a person has returned to work. Regulation 21 provides that there will be no liability for the payment of additional statutory paternity pay where there is entitlement to statutory sick pay, where the person claiming it has died, or (generally speaking) where he or she has been detained in legal custody. Regulation 22 specifies the payments to be treated as contractual remuneration for the purposes of section 171ZG of the 1992 Act, which section prevents both additional statutory paternity pay and contractual remuneration being payable in respect of the same period. Regulation 23 provides for liability to make payments of additional statutory paternity pay in cases where an employee’s contract of service is brought to an end solely or mainly for the purpose of avoiding liability for additional (or ordinary) statutory paternity pay.

Regulation 24 makes provision for persons who are, and are not, to be treated as employees in connection with additional statutory paternity pay, and regulations 25 to 29 make provision as to what is to be treated as continuous employment. Regulation 30 provides for cases where two or more employers or two or more contracts of service are treated as one. Regulation 31 defines earnings, and regulation 32 sets out how normal weekly earnings are to be calculated. Regulations 33 and 34 set out how payment of additional statutory paternity pay is to be made, and the time of payment. Regulation 35 provides for the Commissioners of Her Majesty’s Revenue and Excise (“the Commissioners”) to pay additional statutory paternity pay where the employer fails to make payment, or becomes insolvent. Regulation 36 provides for the Commissioners to pay additional statutory paternity pay where there is liability to pay it in cases involving legal custody or imprisonment. Regulation 37 sets out how the Commissioners are to make payments, and the time of payment. Regulation 38 provides for the Commissioners to appoint someone to act on behalf of a person unable to act who is or may be entitled to additional statutory paternity pay. Regulation 39 provides for a notice properly sent by post to be treated as having been given on the day on which it is posted.