2014 No. 3095
Terms And Conditions Of Employment

The Employment Rights Act 1996 (Application of Sections 75A, 75B, 75G, 75H, 80A and 80B to Parental Order Cases) Regulations 2014

Made
Coming into force
A draft of these Regulations was laid before Parliament in accordance with section 236(3) of the Employment Rights Act 19961 and approved by resolution of each House of Parliament.
The Secretary of State, in exercise of the powers conferred by sections 75A(8), 75B(9), 75H(18), 80B(9) and 236(5) of the Employment Rights Act 19962, makes the following Regulations.

Citation, commencement and interpretation1.

(1)

These Regulations may be cited as the Employment Rights Act 1996 (Application of Sections 75A, 75B, 75G, 75H, 80A and 80B to Parental Order Cases) Regulations 2014 and come into force on 25th November 2014.

(2)

In these Regulations—

“the Act” means the Employment Rights Act 1996;

F1“intended parent”, in relation to a child, means a person who, on the day of the child’s birth—

(a)

applies, or intends to apply during the period of 6 months beginning with that day—

  1. (i)

    with another person for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child; or

  2. (ii)

    as the sole applicant for an order under section 54A of that Act in respect of the child; and

(b)

expects the court to make such an order in respect of the child;

F2“primary parental order parent”, in relation to a child, means the person who elects to be the child’s primary carer—

(a)

on whose application the court has made an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child, or

(b)

who applies, or intends to apply, during the period of 6 months beginning with the day of the child’s birth, with another person for such an order in respect of the child, and expects the court to make that order;

F3...

F4...

F5“section 54 parental order parent” means a person—

(a)

on whose application the court has made an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of a child; or

(b)

who is an intended parent of a child by reference to an application or intended application for such an order;

F5“section 54A parental order parent” means a person—

(a)

on whose application the court has made an order under section 54A of the Human Fertilisation and Embryology Act 2008 in respect of a child; or

(b)

who is an intended parent of a child by reference to an application or intended application for such an order.

F6(3)

For the purposes of the definition of “primary parental order parent” in paragraph (2), a person (“A”) elects to be a child’s primary carer if A and the person (“B”) with whom A has applied, or intends to apply, for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child agree that A, and not B, will be the child’s primary carer.

Application of sections 75A and 75B of the Act to parental order parents2.

Sections 75A and 75B of the Act have effect in relation to F7section 54 parental order parents and section 54A parental order parents.

Application of sections 75G and 75H of the Act to parental order parents3.

Sections 75G and 75H of the Act3 have effect in relation to F8section 54 parental order parents with the modifications specified in the second column of Schedule 1 to these Regulations.

Application of sections 80A and 80B of the Act to parental order parents4.

Sections 80A4 and 80B of the Act have effect in relation to F9section 54 parental order parents F10and primary parental order parents with the modifications specified in the second column of Schedule 2 to these Regulations.
Jo Swinson
Parliamentary Under Secretary of State for Employment Relations and Consumer Affairs
Department for Business, Innovation and Skills

SCHEDULE 1

Regulation 3

Annotations:
Commencement Information

I5Sch. 1 in force at 25.11.2014, see reg. 1(1)

Provision

Modification

Section 75G

For paragraph (b) of subsection (1) substitute—

“(b)

as to being a person—

(i)

on whose application the court has made a parental order in respect of a child, or

(ii)

who is an intended parent of a child,”.

For paragraph (b) of subsection (4) substitute—

“(b)

as to being a person—

(i)

on whose application the court has made a parental order in respect of a child, or

(ii)

who is an intended parent of a child,

(ba)

as to relationship with the other person (“A”) on whose application the parental order was made or who is an intended parent of the child,”.

After subsection (6) insert—

“(6A)

In this section and section 75H—

F11“intended parent”, in relation to a child, means a person who, on the day of the child’s birth—

(a)

applies, or intends to apply during the period of 6 months beginning with that day—

  1. (i)

    with another person for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child; or

  2. (ii)

    as the sole applicant for an order under section 54A of that Act in respect of the child; and

(b)

expects the court to make such an order in respect of the child; and

“parental order” means an order under section 54 or 54A of the Human Fertilisation and Embryology Act 2008.”.

Omit subsection (7).

Omit subsection (8).

Section 75H

In paragraph (a) of subsection (2), for “with whom the child is, or is expected to be placed for adoption” substitute “on whose application the court has made a parental order in respect of the child or who is an intended parent of the child”.

In paragraph (b) of subsection (2), for “with whom the child is, or is expected to be placed for adoption” substitute “on whose application the court has made a parental order in respect of the child or who is an intended parent of the child”.

In paragraph (b) of subsection (14), for “placed for adoption as part of the same arrangement” substitute “born as a result of the same pregnancy”.

SCHEDULE 2

Regulation 4

Annotations:
Commencement Information

I6Sch. 2 in force at 25.11.2014, see reg. 1(1)

Provision

Modification

Section 80A

After paragraph (a) in subsection (5) insert—

“(aa)

make provision excluding the right to be absent on leave under this section in the case of an employee who satisfies—

(i)

the conditions specified in regulations under section 75A(1) or 80B(1), or

(ii)

such of those conditions as are specified in regulations under subsection (1);”.

Section 80B

For paragraph (b) of subsection (1) (and the following “and”) substitute—

“(b)

as to being a person—

(i)

on whose application the court has made a parental order in respect of a child, or

(ii)

who is an intended parent of a child, and”.

For paragraph (c) of subsection (1) substitute—

“(c)

as to relationship with the other person on whose application the parental order was made or who is an intended parent of the child,”.

In subsection (4), for “placement for adoption” substitute “birth”.

In paragraph (a) of subsection (5), for “a person with whom a child is placed for adoption” substitute “the other person on whose application the court has made a parental order in respect of a child or who is an intended parent of a child”.

Omit paragraph (aa) of subsection (5)5.

In paragraph (c) of subsection (5), for “placed for adoption as part of the same arrangement” substitute “born as a result of the same pregnancy”.

For subsection (6) substitute—

“(6)

Where more than one child is born as a result of the same pregnancy, the reference in subsection (4) to the date of the child’s birth shall be read as a reference to the date of birth of the first child born as a result of the pregnancy.”.

Omit subsection (6A)6.
Omit subsection (6B)7.

F12For subsection (6C) substitute—

“(6C)

In relation to cases where the primary parental order parent of a child dies, this section has effect as if—

(a)

in subsection (1)(c), after “intended parent” there were inserted “or primary parental order parent”;

(b)

after subsection (1) there were inserted—

“(1A)

But in a case where the primary parental order parent of a child dies and—

(a)

the employee does not apply for an order under section 54 of the Human Fertilisation and Embryology Act 2008 within the time limit set by subsection (3) of that section,

(b)

the employee’s application for an order under that section for the child is refused, withdrawn or otherwise terminated without the order being granted and any time for an appeal or a new application has expired, or

(c)

the child dies,

the regulations may provide that an employee who satisfies those conditions is entitled to leave under this section despite the fact that the leave cannot be taken for that purpose.”.

After subsection (7) insert—

“(7A)

In this section—

F13“intended parent” in relation to a child, means a person who, on the day of the child’s birth—

(a)

applies, or intends to apply during the period of 6 months beginning with that day—

  1. (i)

    with another person for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child; or

  2. (ii)

    as the sole applicant for an order under section 54A of that Act in respect of the child; and

(b)

expects the court to make such an order in respect of the child; F14...

“parental order” means an order under section 54 or 54A of the Human Fertilisation and Embryology Act 2008F15;

“primary parental order parent”, in relation to a child, means the person who elects to be the child’s primary carer—

(a)

on whose application the court has made an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child, or

(b)

who applies, or intends to apply, during the period of 6 months beginning with the day of the child’s birth, with another person for such an order in respect of the child, and expects the court to make that order.”.

F16After subsection (7A) insert—

“(7B)

For the purposes of the definition of “primary parental order parent” in subsection (7A), a person (“A”) elects to be a child’s primary carer if A and the person (“B”) with whom A has applied, or intends to apply, for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child agree that A, and not B, will be the child’s primary carer.”

EXPLANATORY NOTE
(This note is not part of the Regulations)

Sections 75A and 75B of the Employment Rights Act 1996 give employees who are adopting a child under the law of any part of the United Kingdom and who satisfy prescribed conditions the right to take ordinary adoption leave and additional adoption leave. These sections also allow an employee who is entitled to ordinary or additional adoption leave to curtail that leave to access shared parental leave. These Regulations provide that those sections have effect in relation to parental order parents. A parental order parent is a person 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 or someone who has such an order.

Sections 75G and 75H of the Employment Rights Act 1996 contain powers under which the Secretary of State may make regulations entitling an employee who is adopting a child under the law of any part of the United Kingdom, or has a specified relationship with such an adopter, to shared parental leave. These Regulations make the necessary modifications to sections 75G and 75H to provide for those sections to have effect in relation to parental order parents.

Section 80B of the Employment Rights Act 1996 contains powers under which the Secretary of State may make regulations entitling an employee who satisfies specified conditions to paternity leave. These Regulations make the necessary modifications to section 80B to provide for that section to have effect in relation to parental order parents. In addition, these Regulations modify section 80A of the Employment Rights Act 1996 to allow the Secretary of State to make regulations which provide that an employee does not have an entitlement to paternity leave under that section where the employee has the right to paternity leave under section 80B or to adoption leave under section 75A of the Employment Rights Act 1996.

An impact assessment has not been prepared for these Regulations. These Regulations are part of a package of legislative measures and the relevant impact assessment is the Modern Workplaces: shared parental leave and pay administration consultation impact assessment which was published in February 2013. A copy of that impact assessment can be obtained from the Department for Business, Innovation and Skills, Labour Market Directorate, 1 Victoria Street, London, SW1H 0ET. Copies have also been placed in the libraries of both Houses of Parliament.