Commentary on Sections Part 2: Shared Rights to Leave and Pay 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) and (2)(d) require claimant A to have met certain prescribed conditions regarding length of service and earnings. The condition in subsection (2)(e) 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)(f) is that claimant A became entitled to receive statutory adoption pay in respect of the child.
Subsection (2)(g) relates to the reduction of the adoption pay period.
The condition in subsection (2)(h) and (2)(i) 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)(j) 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)(k).
The condition in subsection (2)(l) 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)(m) and (2)(n) 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) and (4)(e) relate to continuous service and earnings. The condition in subsection (4)(f) 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)(g) is that Y must have been entitled to receive statutory adoption pay by reference to the child. The condition in subsection (4)(h) relates to the reduction of the adoption pay period applying to Y.
In accordance with subsection (4)(i) and (4)(j), 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)(k) relates to the timing, form and content of such notices.
The condition in subsection (4)(l) is that Y must consent to the amount of statutory shared parental pay that claimant B intends to claim.
Subsection (4)(m) 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)(n) and (4)(o) 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.