Employees who are adopting a child under the age of 18 may be entitled to adoption leave. The right to adoption leave is set out in the Employment Rights Act 1996 and the Paternity and Adoption Leave Regulations 2002 (as amended). (There are separate regulations that explain how the right applies where the child is adopted from overseas. Your Association can advise you on the effect of these.)
Where a couple is adopting, they must decide which partner should take adoption leave. The other partner may then be entitled to paternity leave (who qualifies? ). The spouse or partner of a sole adopter may also be entitled to paternity leave. An employee is entitled to only one period of adoption leave for each adoption arrangement, even if the arrangement involves more than one child.
An employee qualifies for adoption leave if he or she has been continuously employed ( Calculating qualifying periods ) for 26 weeks by the end of the week in which he or she was notified of having been matched with the child.
Adoption leave lasts up to 52 weeks. The first 26 weeks are called ordinary adoption leave; the next 26 weeks are additional adoption leave. (rights during adoption leave )
An employee can choose to start adoption leave on the date of the child's placement or up to 14 days before the placement is due. (The employee can alter the start date, but must give the employer notice of the change (notice requirements ).) If the employee wanted to begin the leave on the date of the placement but is at work that day, the leave begins the following day.
If an employee begins adoption leave before the child is placed and the placement falls through, or if the child dies or is returned to the adoption agency, the employee's adoption leave will end eight weeks after the week in which that event occurs.
In order to qualify for the right to adoption leave, an employee must meet certain notice requirements:
- Notice of leave Within seven days of receiving notification of the match, the employee must let the employer know that he or she plans to take adoption leave. (If it is not possible for the employee to give notice by this time, he or she must give notice as soon as is reasonably practicable.) The notice must give the date the child is due to be placed and the date on which the employee wants to begin the leave. The employer can ask for this notice to be in writing.
- Notice of change in leave date If the employee decides to alter the date of the leave, he or she must notify the employer at least 28 days in advance of the revised date or, if that is not possible, as soon as reasonably practicable.
- Evidence of match If it wants to, the employer can ask the employee to provide evidence of the adoption agency's name and address, the date of notification of the match and the expected date of placement. (Copies of documents provided by the adoption agency should suffice.)
When it hears from the employee that he or she intends to take adoption leave, the employer must write to the employee within 28 days confirming the date on which he or she will be due back at work. Likewise, if the employee changes the date on which he or she wants to begin leave, the employer must confirm the revised end date, within the first 28 days of the employee's leave. If the employer fails to do so, it will be restricted in its ability to control the employee's return to work (returning to work ) or to discipline the employee for failing to return on time (protection from unfavourable treatment or dismissal ). The Department of Business and Regulatory Reform has produced a model letter that employers can use to confirm an employee's return date (adoption leave).
Employees' rights during adoption leave are similar to their rights during maternity leave. During adoption leave (both ordinary and additional), employees are entitled to all their normal terms and conditions of employment, apart from their wages or salary (although they may be entitled to Statutory Adoption Pay instead (statutory adoption pay )). They are also bound by all their usual employment obligations, except those that are inconsistent with their right to be absent on adoption leave.
The Social Security Act 1989 requires that during any period when employees are on adoption leave and receiving any pay under their contract. They must be treated for pension purposes as if they were working normally and being paid their normal pay. Any pension contributions that the employees are obliged to make, however, must be based on the pay they are actually receiving.
Employees who take adoption leave may qualify for 39 weeks' Statutory Adoption Pay (SAP). The right to SAP is set out in the Social Security Contributions and Benefits Act 1992 and the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002. In order to qualify, an employee's normal weekly earnings in the eight weeks before the week in which the adoption match is notified must be at or above the lower earnings threshold. The lower earnings limit is reviewed annually and is currently £90 from April 2008.
SAP is paid at the same weekly rate as flat-rate SMP, that is, £117.18 from April 2008 or 90 per cent of normal weekly earnings, whichever is less. Employees must give their employer 28 days' notice that they wish to claim SAP or, if that is not possible, as much notice as reasonably practicable, and provide evidence of the adoption match (length of adoption leave ).
Employers can recover their SAP payments from their National Insurance contributions, in the same way as they recover SMP (recouping smp ).
Any entitlement that an employee has to paid holiday under the Working Time Regulations 1998 (weekly rest periods ) and their contract of employment is unaffected by the fact that he or she may be on adoption leave for part of the leave year. (contract terms and the working time regulations ).
An employee's contract of employment continues throughout adoption leave, so the employee continues to build up continuous service for the purposes of any employment rights that depend on continuous employment, such as unfair dismissal and the right to a redundancy payment.
Keeping in touch days during adoption leave
An employee on adoption leave may undertake up to 10 days’ work for their employer during their adoption leave period without bringing the leave period to an end. However, there is no requirement for an employee to undertake work during their adoption leave nor is there any requirement for an employer to provide such work. Work for this purpose is broadly defined to include not only work under the employment contract but also training and any other activity undertaken for the purposes of keeping in touch with the workplace. These “keeping in touch days” are entirely voluntary but can prove of benefit to both employers and employees
The position of an employee returning from adoption leave is broadly the same as that of an employee returning from maternity leave. The company should assume that the employee will return to work at the end of his or her maximum adoption leave. If the employee decides to return to work early, he or she must give the employer eight weeks' notice of the return date. If the employee fails to give proper notice, the employer can postpone the employee's return for up to eight weeks, or until the date on which his or her additional adoption leave would have ended, whichever is sooner. The employer is under no obligation to pay the employee until the postponed date of return. If however, the employer has not written to the employee confirming his or her return date (confirmation of return date ), it has no right to postpone the employee's return in this way.
An employee who returns to work after up to 26 weeks' adoption leave is entitled to return to the same job. If the employee returns after more than 26 weeks, he or she is usually entitled to return to the same job. If the employer can show, however, that it is not reasonably practicable to allow the employee to return to the same job, it has the option of giving the employee a suitable alternative, provided the status and terms and conditions of the new job are as good as the old.
On return to work, the employee's terms and conditions must be as good as they would have been had he or she not been away.
There are complicated rules on the rights of employees who return to work after two or more consecutive periods of family leave. Companies who need advice on this should contact their Association.
It is unlawful for an employer to treat an employee unfavourably for any reason connected with the employee's right to adoption leave. Likewise, it is automatically unfair to dismiss an employee for this reason, including selecting the employee for redundancy on this basis, regardless of the employee's length of service.
In particular, it is unlawful for an employer to discipline or dismiss an employee for failing to return to work after additional adoption leave, if the employer did not meet its duty to confirm to the employee the date on which his or her leave was due to end (confirmation of return date ) and the employee reasonably believed that the leave had not ended, or if the employer gave the employee less than 28 days' notice of the date on which the leave would end and it was not reasonably practicable for the employee to return on the specified date.
An employee who is dismissed or resigns while on adoption leave may have the right to be paid his or her usual pay during the period of notice. This is the case even if that falls during a time when he or she would otherwise be receiving less than full pay or no pay at all. This protection applies to employees who are entitled to no more than six days more than the minimum notice of dismissal required by the Employment Rights Act 1996 (minimum notice periods ). (The minimum period of notice is, broadly speaking, one week for each year that the employee has been employed, up to a maximum of 12 weeks.)
Like an employee made redundant while on maternity leave, an employee who is made redundant during adoption leave is entitled to be offered any suitable alternative vacancy that may exist with the employer or an associated employer (change of employer ), on terms and conditions that are broadly the same as under his or her existing contract (redundancy).
Any employee who is dismissed while on adoption leave is entitled to a written statement of the reasons for his or her dismissal, without having to ask for it. This right normally applies only to employees who have at least one year's service and who request the statement.