Paternity and Adoption Leave Regulations 2002 (SI 2002/2788) — reg 2 ("partner") and reg 4 (entitlement to paternity leave: birth)

In brief

The regulations that give ERA 1996 ss.80A–80B their operative eligibility conditions for paternity leave. Regulation 2(1) defines partner, in relation to a child's mother or adopter, as 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 and is not a relative of a kind specified — a functional, sex-neutral definition. Regulation 4 sets the conditions for paternity leave on birth: the employee must be the father of the child, or married to, the civil partner or the partner of the child's mother, but not the child's father, and must have (or expect to have) responsibility for the child's upbringing (the main responsibility, apart from any responsibility of the mother where the employee is the mother's husband, civil partner or partner). The conditions are treated as satisfied where the mother has died, or the child was stillborn after 24 weeks of pregnancy. Together with s.57ZE(7) of the 1996 Act, reg 2 is the statutory model for inclusive partner drafting in a handbook; and the child's mother here bears the meaning settled in R (McConnell) v Registrar General — the person who gives birth, whatever their legal gender. Decision-support, not legal advice.

Key provisions

• reg 2(1) — Definition of partner — sex-neutral, relationship-based: 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)".
• reg 4(1)–(2) — Entitlement to paternity leave (birth) — the relationship and responsibility conditions: "An employee is entitled to be absent from work for the purpose of caring for a child or supporting the child's mother if he" satisfies the conditions in paragraph (2) and the notice requirements in reg 6. The paragraph (2) conditions: the employee is either the father of the child, or married to , the civil partner or the partner of the child's mother, but not the child's father; and has, or expects to have, responsibility for the upbringing of the child (if the father) or the main responsibility (apart from any responsibility of the mother) for the upbringing of the child (if the mother's husband, civil partner or partner).
• reg 4(4)–(5) — Conditions deemed satisfied — death of the mother; stillbirth after 24 weeks: "An employee shall be treated as having satisfied the condition in paragraph (2)(b)(ii) if he would have satisfied it but for the fact that the child's mother has died." An employee is treated as satisfying the responsibility condition if he would have satisfied it but for the fact that the child was stillborn after 24 weeks of pregnancy.

When relevant

Whenever a handbook's paternity, partner or adoption-leave provision names who qualifies: cite reg 2(1) for the meaning of partner and reg 4 for the birth conditions. The inclusive-terms question in a family-friendly rights review turns on exactly this text.