A new Commencement Order (SI 2007/2445) has brought aspects of Schedule 5 paragraph 3 (non-compliance: compulsory levelling up) to the Social Security Act 1989 into force from 24 August 2007. At first glance, it is perhaps surprising that any part of such a relatively ancient Act remained to be brought into force. In fact the Order refers indirectly to new provisions on unfair paternity and adoption leave inserted into Sch 5 as paras 5A and 5B by s.265 of the Pensions Act 2004.

Although very short, in effect the Order is quite convoluted to understand. On the one hand, PA 2004 s.265 has been in force since 6 April 2005, by virtue of SI 2005/275 Art 2 and Part 7 of the Schedule. SSA 89 Sch 5 para 3, however, was never fully commenced (and still isn't entirely in force).

SSA 89 s.23 and Sch 5 form the primary governing legislation for equal treatment of men and women. At the time this Act was passed, nobody had thought about paternity leave or adoption leave. These are relatively new concepts, first announced by the Government in March 2001 and formally introduced into the Employment Rights Act 1996 by the Employment Act 2002. The details were fleshed out by The Paternity and Adoption Leave Regulations 2002 (SI 2002/2788).

SSA 89 Sch 5 paras 5A and 5B specify what constitute unfair paternity or adoption leave provisions, and declares that if a scheme includes such provisions it is non-compliant. However, the crucial subpara (3) in each of paras 5A and 5B, which states what must be done to remedy the non-compliance, is subject to Sch 5 para 3. Since para 3 was not in force with respect to paras 5A and 5B until now, in the absence of action by trustees to exercise a power of amendment there was no effective remedy.

The effect of this Commencement Order is to bring into force the overriding provisions of Sch 5 para 3 (except subpara (2), which has never been commenced at all) for the purposes of paras 5A and 5B. Para 3 covers schemes where the trustees for whatever reason lack a suitable power of amendment, but it does not prevent the exercise of such a power where available. The provisions of para 3 are deliberately not made retrospective, so that in this case, any unfair treatment prior to 24 August 2007 in respect of paternity or adoption leave is not covered.