The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002

Statutory Instruments

2002 No. 2821

TERMS AND CONDITIONS OF EMPLOYMENT

The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002

Made

13th November 2002

Laid before Parliament

15th November 2002

Coming into force

8th December 2002

The Secretary of State, in exercise of the powers conferred upon her by virtue of sections 171ZI, 171ZJ(1), 171ZR and 171ZS(1) of the Social Security Contributions and Benefits Act 1992(1) and with the concurrence of the Treasury, by this instrument, which contains only provision made by virtue of sections 2 and 4 of the Employment Act 2002(2) and is made before the end of the period of 6 months from the coming into force of those enactments, hereby makes the following Regulations:

Modifications etc. (not altering text)

C1 Regulations modified (23.5.2003) by The Statutory Paternity Pay (Adoption) and Statutory Adoption Pay (Adoptions from Overseas) (Persons Abroad and Mariners) Regulations 2003 (S.I. 2003/1193), regs. 1, 3

C2 Regulations modified (6.4.2010 immediately after the coming into force of S.I. 2010/151) by The Ordinary Statutory Paternity Pay (Adoption), Additional Statutory Paternity Pay (Adoption) and Statutory Adoption Pay (Adoptions from Overseas) (Persons Abroad and Mariners) Regulations 2010 (S.I. 2010/150), regs. 1(2), 4

Citation, commencement and interpretation E+W+S

1.—(1) These Regulations may be cited as the Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 and shall come into force on 8th December 2002.

(2) In these Regulations—

“the Act” means the Social Security Contributions and Benefits Act 1992;

[F1 “additional statutory paternity pay (adoption)” means additional statutory paternity pay payable in accordance with the provisions of Part 12ZA of the Act where the conditions specified in section 171ZEB(2) of the Act are satisfied;

“additional statutory paternity pay (birth)” means additional statutory paternity pay payable in accordance with the provisions of Part 12ZA of the Act where the conditions specified in section 171ZEA(2) of the Act are satisfied;]

[F2 “adopter”, in relation to a child, means—

(a)

in the context of ordinary statutory paternity pay, a person who has been matched with the child for adoption,

(b)

in the context of additional statutory paternity pay, a person who has been matched with the child for adoption and who has elected to take adoption leave under section 75A or 75B of the Employment Rights Act 1996 in order to care for the child;]

“the Contributions Regulations” means the Social Security Contributions Regulations 2001(3);

“EEA” means European Economic Area;

“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992(4) as adjusted by Protocol signed at Brussels on 17th March 1993(5);

“EEA State” means a State which is a contracting party to the EEA Agreement;

[F3 “foreign-going ship” means any ship or vessel which is not a home-trade ship;]

“the General Regulations” means the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002(6);

[F4 “home-trade ship” includes—

(a)

every ship or vessel employed in trading or going within the following limits, that is to say, the United Kingdom (including for this purpose the Republic of Ireland), the Channel Islands, the Isle of Man, and the continent of Europe between the river Elbe and Brest inclusive;

(b)

every fishing vessel not proceeding beyond the following limits—

• on the South, Latitude 48°30’N,

• on the West, Longitude 12°W, and

• on the North, Latitude 61°N;

“mariner” means a person who is or has been in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where—

(a)

the employment in that other capacity is for the purposes of that ship or vessel or her crew or any passengers or cargo or mails carried by the ship or vessel; and

(b)

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on her voyage;

but does not include a person in so far as their employment is as a serving member of the forces;

“ordinary statutory paternity pay (adoption)” means statutory paternity pay payable in accordance with the provisions of Part 12ZA of the Act where the conditions specified in section 171ZB(2) of the Act are satisfied;

“ordinary statutory paternity pay (birth)” means statutory paternity pay payable in accordance with the provisions of Part 12ZA of the Act where the conditions specified in section 171ZA(2) of the Act are satisfied;

“serving member of the forces” means a person, other than one mentioned in Part 2 of the Schedule, who, being over the age of 16, is a member of any establishment or organisation specified in Part 1 of that Schedule (being a member who gives full pay service) but does not include any such person while absent on desertion;]

F5 ...

“week” means a period of 7 days beginning with Sunday.

[F6 (3) For the purposes of these Regulations—

(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) 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 2005, regulation 28(3) of the Adoption Agencies (Wales) Regulations 2005 or regulation 8(5) of the Adoption Agencies (Scotland) Regulations 2009.]

[F7 (4) For the purposes of these Regulations, the expressions “ship” and “ship or vessel” include hovercraft, except in regulation 8(3).]

Textual Amendments

F1 Words in reg. 1(2) inserted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 3(2)

F2 Words in reg. 1(2) substituted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 3(3)

F3 Words in reg. 1(2) inserted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 3(4)

F4 Words in reg. 1(2) inserted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 3(5)

F5 Words in reg. 1(2) omitted (6.4.2010) by virtue of The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 3(5)

F6 Reg. 1(3) substituted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 3(6)

F7 Reg. 1(4) inserted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 3(7)

Commencement Information

I1 Reg. 1 in force at 8.12.2002, see reg. 1(1)

Restriction on scope E+W+S

2.  A person who would not be treated under regulation 32 of the General Regulations as an employee for the purposes of Parts 12ZA [F8 (ordinary and additional statutory paternity pay)] and 12ZB (statutory adoption pay) of the Act if his employment were in Great Britain shall not be treated as an employee under these Regulations.

Textual Amendments

F8 Words in reg. 2 substituted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 4

Commencement Information

I2 Reg. 2 in force at 8.12.2002, see reg. 1(1)

Treatment of persons in other EEA States as employees E+W+S

3.  A person who is—

(a) gainfully employed in an EEA State other than the United Kingdom in such circumstances that, if his employment were in Great Britain, he would be an employee for the purposes of Parts 12ZA and 12ZB of the Act, or a person treated as such an employee under regulation 32 of the General Regulations; and

(b) subject to the legislation of the United Kingdom under Council Regulation (EEC) No. 1408/71(7),

notwithstanding that he is not employed in Great Britain, shall be treated as an employee for the purposes of Parts 12ZA and 12ZB of the Act.

Commencement Information

I3 Reg. 3 in force at 8.12.2002, see reg. 1(1)

Treatment of certain persons absent from Great Britain as employees E+W+S

4.  Subject to regulation 8(3), where a person, while absent from Great Britain for any purpose, is gainfully employed by an employer who is liable to pay secondary Class 1 contributions in respect of his employment under section 6 of the Act or regulation 146 of the Contributions Regulations, he shall be treated as an employee for the purposes of Parts 12ZA and 12ZB of the Act.

Commencement Information

I4 Reg. 4 in force at 8.12.2002, see reg. 1(1)

[F9 Entitlement to ordinary statutory paternity pay and additional statutory paternity pay where person has worked in an EEA State E+W+S

5.— (1) A person who is an employee or treated as an employee under regulation 3 and who—

(a) in the week immediately preceding the 14th week before the expected week of the child’s birth was in employed earner’s employment with an employer in Great Britain; and

(b) had in any week within the period of 26 weeks immediately preceding that week been employed by the same employer in another EEA State,

shall be treated for the purposes of section 171ZA of the Act (entitlement to ordinary statutory paternity pay (birth)) and section 171ZEA of the Act (entitlement to additional statutory paternity pay (birth)) as having been employed in employed earner’s employment in those weeks in which the person was so employed in the other EEA State.

(2) A person who is an employee or treated as an employee under regulation 3 and who—

(a) in the week in which the adopter is notified of being matched with the child for purposes of adoption was in employed earner’s employment with an employer in Great Britain; and

(b) had in any week within the period of 26 weeks immediately preceding that week been employed by the same employer in another EEA State,

shall be treated for the purposes of section 171ZB of the Act (entitlement to ordinary statutory paternity pay (adoption)) and section 171ZEB of the Act (entitlement to additional statutory paternity pay (adoption)) as having been employed in employed earner’s employment in those weeks in which the person was so employed in the other EEA State.]

Textual Amendments

F9 Reg. 5 substituted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 5

Entitlement to statutory adoption pay where person has worked in an EEA State E+W+S

6.  A person who is an employee or treated as an employee under regulation 3 and who—

(a) in the week in which he is notified that he has been matched with the child for the purposes of adoption was in employed earner’s employment with an employer in Great Britain; and

(b) had in any week within the period of 26 weeks immediately preceding that week been employed by the same employer in another EEA State,

shall be treated for the purposes of section 171ZL of the Act (entitlement to statutory adoption pay) as having been employed in employed earner’s employment in those weeks in which he was so employed in the other EEA State.

Commencement Information

I5 Reg. 6 in force at 8.12.2002, see reg. 1(1)

Time for compliance with Parts 12ZA and 12ZB of the Act or regulations made under them E+W+S

7.  Where—

(a) a person is outside the United Kingdom;

(b) Parts 12ZA or 12ZB of the Act or regulations made under them require any act to be done forthwith or on the happening of a certain event or within a specified time; and

(c) because the person is outside the United Kingdom he or his employer cannot comply with the requirement,

the person or the employer, as the case may be, shall be deemed to have complied with it if the act is performed as soon as reasonably practicable.

Commencement Information

I6 Reg. 7 in force at 8.12.2002, see reg. 1(1)

Mariners E+W+S

8.—F10 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A mariner engaged in employment on board a home-trade ship with an employer who has a place of business within the United Kingdom shall be treated as an employee for the purposes of Parts 12ZA and 12ZB of the Act, notwithstanding that he may not be employed in Great Britain.

(3) A mariner who is engaged in employment—

(a) on a foreign-going ship; or

(b) on a home-trade ship with an employer who does not have a place of business within the United Kingdom,

shall not be treated as an employee for the purposes of Parts 12ZA and 12ZB of the Act, notwithstanding that he may have been employed in Great Britain.

Textual Amendments

F10 Reg. 8(1) omitted (6.4.2010) by virtue of The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), regs. 1, 6

Commencement Information

I7 Reg. 8 in force at 8.12.2002, see reg. 1(1)

Continental shelf E+W+S

9.—(1) In this regulation—

“designated area” means any area which may from time to time be designated by Order in Council under section 1(7) of the Continental Shelf Act 1964(8) as an area within which the rights of the United Kingdom with respect to the seabed and subsoil and their natural resources may be exercised;

“prescribed employment” means any employment (whether under a contract of service or not) in a designated area in connection with continental shelf operations, as defined in section 120(2) of the Act.

(2) A person in prescribed employment shall be treated as an employee for the purposes of Parts 12ZA and 12ZB of the Act notwithstanding that he may not be employed in Great Britain.

Commencement Information

I8 Reg. 9 in force at 8.12.2002, see reg. 1(1)

Alan Johnson,

Minister of State for Employment Relations, Industry and the Regions,

Department of Trade and Industry

11th November 2002

We concur in the making of these Regulations.

John Heppell,

Philip Woolas,

Two of the Lords Commissioners of Her Majesty’s Treasury

13th November 2002

[F11 SCHEDULE E+W+S

Textual Amendments

F11 Sch. inserted (6.4.2010) by The Statutory Paternity Pay and Statutory Adoption Pay (Persons Abroad and Mariners) Regulations 2002 (Amendment) Regulations 2010 (S.I. 2010/151), reg. 1, Sch.

PART 1 E+W+S

Establishments and organisations E+W+S

1.   Any of the regular naval, military or air forces of the Crown.

2.   Royal Fleet Reserve.

3.   Royal Naval Reserve.

4.   Royal Marines Reserve.

5.   Army Reserve.

6.   Territorial Army.

7.   Royal Air Force Reserve.

8.   Royal Auxiliary Air Force.

9.   The Royal Irish Regiment, to the extent that its members are not members of any force falling within paragraph 1.

PART 2 E+W+S

Establishments and organisations of which Her Majesty’s Forces shall not consist E+W+S

10.   Her Majesty’s forces shall not be taken to consist of any of the establishments or organisations specified in Part 1 of this Schedule by virtue only of the employment in such establishment or organisation of the following persons—

(a) any person who is serving as a member of any naval force of Her Majesty’s forces and who (not having been an insured person under the National Insurance Act 1965 and not being a contributor under the Social Security Act 1975 or the Social Security Contributions and Benefits Act 1992) locally entered that force at an overseas base;

(b) any person who is serving as a member of any military force of Her Majesty’s forces and who entered that force, or was recruited for that force outside the United Kingdom, and the depot of whose unit is situated outside the United Kingdom;

(c) any person who is serving as a member of any air force of Her Majesty’s forces and who entered that force, or was recruited for that force, outside the United Kingdom, and is liable under the terms of his engagement to serve only in a specified part of the world outside the United Kingdom.]

Explanatory Note

(This note is not part of the Regulations)

This instrument contains only regulations made by virtue of sections 2 and 4 of the Employment Act 2002, which come into force on 8th December 2002. The instrument is made before the end of the period of 6 months beginning with the coming into force of those provisions. The regulations in it are therefore exempted by section 173(5)(b) of the Social Security Administration Act 1992 from the requirement under section 172 of that Act to refer the proposals to make the regulations to the Social Security Advisory Committee and they are made without reference to the Committee.

These Regulations modify Parts 12ZA (statutory paternity pay) and 12ZB (statutory adoption pay) of the Social Security Contributions and Benefits Act 1992 (“the Act”) in relation to persons abroad, persons who work as mariners and persons who work on the continental shelf.

Regulation 2 limits the application of the Regulations to cases where the person would be treated as an employee under Parts 12ZA or 12ZB of the Act if the employment were in Great Britain.

Regulation 3 provides for a person employed in another State of the European Economic Area but subject to the legislation of the United Kingdom to be treated as an employee for the purposes of statutory paternity pay and statutory adoption pay.

Regulation 4 provides for a person who is absent from Great Britain but in respect of whom an employer has secondary Class 1 national insurance contribution liability to be treated as an employee for the purposes of statutory paternity pay and statutory adoption pay.

Where a person has worked for the same employer both in Great Britain and in another State of the European Economic Area, regulation 5 provides, in specified circumstances, for employment in the member State to be treated as employed earner’s employment for the purposes of statutory paternity pay, and regulation 6 makes similar provision for the purposes of statutory adoption pay.

Regulation 7 relaxes any time limit imposed by Parts 12ZA and 12ZB of the Act and the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 in relation to a person who, because he is outside the United Kingdom, cannot comply with it.

Regulation 8 treats certain classes of mariners as employees for the purposes of entitlement to statutory paternity pay and statutory adoption pay and regulation 9 makes corresponding provision for persons working on the continental shelf.

(1)

1992 c. 4. Sections 171ZI and 171ZJ were inserted by section 2 of the Employment Act 2002 (c. 22) and sections 171ZR and 171ZS by section 4 of that Act. Sections 171ZJ(1) and 171ZS(1) are cited because of the meaning ascribed to the word “prescribed”.

(2)

2002 c. 22.

(3)

S.I. 2001/1004.

(4)

Cm. 2073 and OJ No. L 1, 3.1.1994, p. 3.

(5)

Cm. 2183 and OJ No. L 1, 3.1.1994, p. 572.

(6)

S.I. 2002/2822.

(7)

See OJ No. L 28, 30.1.1997, p. 1.

(8)

1964 c. 29.