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Law guide

Adoption leave

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All employees who meet certain qualifying criteria have a right to take up to a year's Statutory Adoption Leave (SAL). The year's leave is made up of 26 weeks of Ordinary Adoption Leave (OAL) and 26 weeks of Additional Adoption Leave (AAL). Employees on adoption leave are entitled to Statutory Adoption Pay (SAP) for the first 39 weeks of SAL.

There is technical legislation which governs i) adoptions by UK residents outside of the UK and ii) where UK residents bring children who they want to adopt or have already adopted in other countries, into the UK. This legislation provides essentially that the UK resident's position regarding these types of adoptions is exactly the same as for a domestic UK adoption. However, due to the complexity of this area, if you are contemplating such an adoption, you should consult a legal adviser.

UK adoptions

Qualifying criteria for adoption leave

In order to be entitled to adoption leave you must:

  • Be an employee. If you are a worker or self-employed, you will not be able to obtain adoption leave from your work provider. See our 'Employees, workers and the self-employed' section for more information.
  • Be the child's adopter. This is the person by whom the child is to be adopted, or where the child is to be adopted by two people jointly, whichever of them has elected to take adoption leave in respect of the child.
  • Have been notified by an adoption agency that you have been 'matched' with a child (the adoption agency gives you details of a child who they believe is suitable for you to adopt) and you notify the adoption agency that you agree to that child being placed (living) with you.
  • Have been employed for at least 26 weeks ending in the week in which you were notified that you have been matched with a child.
Where a couple adopts a child, only one parent is entitled to take adoption leave. The other parent may be able to take paternity leave and paternity pay. This applies to same-sex as well as heterosexual couples.

Your own circumstances will determine which partner should take adoption leave and which one takes paternity leave, such as if one partner does not qualify for adoption leave or which partner is better suited to caring for the child.

See our, 'Employees, workers and the self-employed' section for more information.

Providing notice to your employer

Once you've been notified by your adoption agency that you have been matched with a child, you must notify your employer of certain required information within seven days. The notification must contain the following information:

  • The name and address of the adoption agency
  • The date when the child is expected to be placed with the adopter (the expected date of placement or EDP)
  • When you want your adoption leave to start
Your employer may request that this information is given in writing.

If your employer requests proof of your entitlement (which can be in the form of a certificate or other documents from your adoption agency) then this must also be provided; otherwise you may lose your right to take adoption leave.

Late notification

Your employer must accept a late notification where it was not reasonably practicable for you to notify the employer earlier (e.g. because you were abroad at the time that your adoption agency letter stating that the adopter has been matched with a child was received).

Start date for OAL

There are two options to choose from when deciding what date you want your OAL to begin on. Your OAL can start:

  • On the day that the child is actually placed with you/the adopter
  • On a predetermined date falling in the period which starts 14 days before the EDP and ends on the EDP
Changing the start date

You are entitled to change your proposed start date (as many times as necessary) as long as your give your employer the correct notice. The calculation of the notice period required will differ, depending on whether you're varying your start date to the actual date of placement, or to a date within the predetermined date period.

Varying to actual date of placement

You must notify your employer that you want to your OAL to start on the actual placement date at least 28 days before the EDP.

Varying to a predetermined date

You must notify your employer that you want to vary your OAL start date at least 28 days before the predetermined date on which you want your OAL to start. Your employer must accept a late notification provided that it was not reasonably practicable for you to notify your employer any earlier.

Each notification must be in writing if requested by your employer.

Your employer's response to changes in the start date

Your employer must write to you within 28 days of receiving notification of your proposed or varied start date, informing you of when your adoption leave will end (and usually providing the date when you should return to work). If your employer fails to do so, then you do not have to provide the employer with eight weeks' notice should you wish to return to work before your adoption leave comes to an end.

Early termination of adoption leave

Adoption leave will end prematurely in the following events:

  • You are notified that the child will no longer be placed with you.
  • The child is returned to the adoption agency.
  • The child dies.
In these circumstances, you will be expected to return to work on the first working day after the ninth Sunday following the date of the event (or the first working day after the end of your OAL or AAL if it is earlier).

Overseas adoptions

Qualifying criteria for adoption leave

In order to be entitled to adoption leave you must:

  • Be an employee. If you are a worker or self-employed, you will not be able to obtain adoption leave from your work provider. See our 'Employees, workers and the self-employed' section for more information.
  • Be the child's adopter. This is the person by whom the child is to be adopted, or where the child is to be adopted by two people jointly, whichever of them has elected to take adoption leave in respect of the child.
  • Have received an official notification. Official notification is written notification approving the adoption and is issued by or on behalf of the relevant domestic authority (in England this will usually be the Department for Children, Schools and Families).
  • Have been employed by your employer continuously for at least 26 weeks by the time the official notification was received or by the time your adoption leave is due to begin, whichever is later.
Where a couple adopts a child, only one parent is entitled to take adoption leave. The other parent may be able to take paternity leave and paternity pay provided they qualify. This applies to same-sex as well as heterosexual couples.

Your own circumstances will determine which partner should take adoption leave and which one takes paternity leave, such as if one partner does not qualify for adoption leave or which partner is better suited to caring for the child.

Terms and conditions during leave

An employee's contract of employment continues throughout both OAL and AAL unless either you or the employer expressly ends it or it expires.

During OAL and AAL an employee has a statutory right to continue to benefit from all the terms and conditions of his/her employment. The only exceptions are terms relating to wages or salary. However, an employer is still obliged to pay Statutory Adoption Pay.

Examples of contractual terms and conditions that continue during OAL and AAL include:

  • Gym membership
  • Participation in share schemes
  • Reimbursement of professional subscriptions
  • The use of a company car or mobile phone (unless provided for business use only)
Generally, an employee will not have a right to receive any payments related to their performance (such as bonuses and/or commissions). However, employees will still be entitled to any bonus or commission payments that relate to the period before their OAL commenced.

Both OAL and AAL count towards your period of continuous employment for the purposes of entitlement to other statutory employment rights, e.g. the right to a redundancy payment and for assessing seniority and personal length-of-service payments like pay increments, under your contract of employment.

Pension contributions

For the purpose of pension rights, during OAL your employer should maintain its contribution to an occupational pension scheme. Where AAL coincides with statutory Paid Adoption Leave, i.e. during the first 13 weeks of AAL, your employer should continue to pay its contribution towards an occupational pension scheme (as with OAL). For the remainder of the AAL period, or where an employee is not receiving adoption pay, the employer will be under no obligation to pay pension contributions unless the contract of employment states otherwise.

You must continue to pay your pension contributions based on the amount of SAP or enhanced adoption pay that you receive if your pension scheme's rules require you to do so. You will not have to make any contributions towards your pension during any period during which you are not receiving any adoption pay. However, you may still make voluntary contributions if the pension scheme rules allow you to do so.

Annual leave

You will continue to accrue any statutory or contractual entitlement to annual leave throughout both your OAL and AAL.

You may not take your annual leave while on adoption leave. Instead, your employer must allow you to take any untaken annual leave before and/or after your adoption leave.

What happens then if your employer's holiday year ends while you are still on adoption leave and you have unused holiday entitlement? Under UK law there are limitations on carrying over unused holiday entitlement from one holiday year to the next. You cannot carry over any unused statutory holiday entitlement at all unless your employment contract or a collective agreement so provides, and then only up to a maximum of 1.6 weeks. You cannot carry over any additional unused contractual holiday entitlement unless you have a contractual right to do so. However, these restrictions are at odds with the view of the European Court of Justice. Therefore it is suggested good practice for employers to allow their employees to take any unused holiday entitlement on their return from adoption leave.

Note, however, that your employer cannot pay you in lieu of any untaken statutory annual leave unless your contract is terminated.

Contact during leave

As a general rule, if you work for your employer during your adoption leave, then this will bring your leave and adoption pay to an end (with the exception of 'Keeping in touch days' - see below for more information). However, some contact between the employer and employee is allowed during the adoption leave period and consequentially your employer can make reasonable contact with you and you may make contact with them. Contact can be made by any means, e.g. telephone, email, letter or a meeting in the workplace.

What amounts to 'reasonable contact' will depend on each employee's particular circumstances, such as whether an agreement has been reached between you and your employer regarding the extent and frequency of any contact, your position, the nature of your job or whether contact is required due to important events, such as changes to the workplace, keeping you informed of promotion opportunities and other information relating to your job that you would normally be made aware of, such as redundancy situations.

Keeping in touch (KIT) days

You can also come to work for a maximum of ten days as a way of keeping in touch with workplace developments, without it affecting your right to adoption leave or pay. These 'KIT' days must be agreed between you and your employer. Therefore you cannot be required to take a KIT day nor can an employer be obliged to offer or agree to you working a KIT day.

During KIT days, you can carry out your normal day-to-day work, but you could also do anything which is not necessarily part of your job description which would help you to keep in touch with your workplace, such as attending conferences, training days or team meetings.

Any work done on a KIT day will count as one KIT day. So if you came into your workplace for thirty minutes to attend a training session or meeting and did no other work, you will have used up one of your KIT days.

Payment for KIT days

You are entitled to be paid for the work done on a KIT day. You and your employer should agree on how much you will be paid for a KIT day. This could be set out in your contract of employment or it may be decided on a discretionary, case-by-case basis by your employer.

Your employer must continue to pay SAP if you are receiving it when you work a KIT day. The SAP paid to you can count towards any contractual pay you agree with your employer for working a KIT day.

Unfair dismissal and discrimination

It would be unlawful for an employer to treat you unfairly or dismiss you because you:

  • Refused to work a KIT day
  • Want to work a KIT day
If you believe that they have been treated unfairly, you may have a claim for either unfair or constructive dismissal (if you resign) and/or possibly sex discrimination if the employer fails to address it.

Right to return to work

You have the right to return to work when your adoption leave comes to an end. However, you must return immediately after your adoption leave expires, or provide your employer with the required notice to return to work early and then return to work on the date given in the notice.

Unless you have notified your employer otherwise, the date you return to work will normally be the first working day 52 weeks after your adoption leave began.

Returning to work early

If you wish to return to work earlier than the end of your adoption leave, you must give your employer at least eight weeks' notice prior to the date you wish to return.

For example, if you were due to return to work after 52 weeks' adoption leave on 1 August, but then decided to return to work on 9 May, you would need to give your employer eight weeks' notice of the new date, i.e. by 14 March.

If your employer did not provide you with the appropriate notification of when your maternity leave should end, then you do not have to give eight weeks' notice.

However, if you attempt to return to work earlier than planned without giving the required notice, your employer is not under any obligation to agree to your early return and may postpone your return by up to eight weeks or until your adoption leave entitlement ends, whichever is earlier. Your return cannot be postponed to a date later than the end of your 52-week adoption leave period.

If your employer postpones the date that you return to work, and you still go to work during this period of postponement, you do not have the right to be paid.

Not returning to work

If you do not want to return to work after your adoption leave, you must give your employer notice as required by your contract of employment.

If you fail to return without good reason on the specified date, it may be a disciplinary matter. However, your employer should take into consideration whether you have a good reason for failing to return (such as illness) before deciding whether or not to take disciplinary measures.

Type of job on return

If you return to work during or at the end of your OAL

If you return to work during or at the end of your OAL period, you are entitled to return to the same job on the same terms and conditions of employment as if you had not been absent. Your position, role and place of work must remain the same unless your contract of employment states that otherwise.

If you are prevented by your employer from returning to work, you may make a complaint of unfair dismissal to an employment tribunal (or industrial tribunal in Northern Ireland).

If you return to work but do not get your old job back, you may have a claim against your employer for either unfair or constructive dismissal (if you resign) and/or possibly for sex discrimination if they fail to address it.

If you return to work during or at the end of your AAL

If you return to work during or at the end of your AAL period, you are entitled to return to the same job on the same terms and conditions of employment as if you had not been absent.

However, if it is not reasonably practicable for you to return to your old job, your employer should offer you a job:

  • That is both suitable and appropriate for you to do in the particular circumstances
  • On terms and conditions that are no less favourable than those for your original job
A suitable and appropriate alternative job must be as close as possible to your previous role.

If you are offered a job that fulfils the above criteria and you unreasonably refuse it, you will have effectively resigned.

If you are offered a job that does not fulfil the criteria, you may have a claim against your employer for either unfair or constructive dismissal (if you resign) and/or for sex discrimination if they fail to address it. Your employer will have to prove that it was not reasonably practicable to give you your same job back.

In addition, whilst on adoption leave, you are entitled to receive a pay rise or other improvements to your terms and conditions given to other employees in your grade or class of work.

You also have a right to request flexible working conditions upon returning to work which your employer must seriously consider.

Your employer should consult with you during your maternity leave about any proposed changes to your job in preparation for your return to work.

Adoption leave & protection against detriment or dismissal

Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, adoption leave.

Your employer must not subject you to any detriment by acting or deliberately failing to act, because you took adoption leave or sought to take adoption leave.

This could include denying promotion, facilities or training opportunities which would normally have been made available to you.

If you believe you have been treated detrimentally, then you could possibly make a claim of sex discrimination to an employment tribunal (or industrial tribunal in Northern Ireland).

Adoptions and redundancy

If a redundancy situation arises at any stage during your adoption leave and your employer may not be able to continue to employ you under your existing contract of employment, then you must be offered (before that contract ends) any suitable alternative vacancies, where one is available. This includes a vacancy with an associated employer or with a successor to your original employer.

The new job must start immediately after the end of the original one and must:

  • Be suitable and appropriate for you to do (taking into consideration any additional domestic duties that have arisen)
  • Have terms and conditions that are not substantially less favourable to you than if you had continued to be employed under the original contract
If your employer fails to comply with these requirements and dismisses you, the dismissal may be unfair. You may also have a claim for sex discrimination.

If you are made redundant whilst on adoption leave because there is no suitable alternative work to offer you, or if you have been offered suitable alternative employment which you have unreasonably refused, then the dismissal may be fair.

Note that, on dismissal:

  • your adoption leave period comes to an end, but
  • your entitlement to SAP continues until the end of the 39 week SAP period (if it hasn't already ended).
The dismissal of an employee will be automatically unfair if they are dismissed or selected for redundancy in preference to other comparable employees solely or mainly because they:

  • Have taken adoption leave
  • Benefited from the terms and conditions of employment to which they were entitled during that leave
  • Failed to return from their adoption leave on time because their employer failed to give any or adequate notification of the end date of the leave
Dismissal, selection for redundancy or other detrimental treatment in these circumstances may also amount to sex discrimination, for which tribunal compensation is unlimited.

It is still possible to fairly dismiss an employee who is on or who has recently returned from adoption leave. However, the reason for the dismissal must:

  • Be largely or wholly unrelated to their adoption leave
  • Not be for any other reason that is unfair or discriminatory