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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. An employee must take at least 2 weeks' OAL.

In England, Wales and Scotland, adoptions includes a child adopted from a surrogate mother where a couple have applied (or will apply) for a parental order.

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

Adoption includes a child adopted from a surrogate mother where a couple have applied, or will apply, for a parental order. It also includes foster children who are adopted under the 'Fostering for Adoption' scheme run by local authorities.

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.
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.

The right to time off for an adoption appointment

Employees or agency workers who are proposing to adopt have a right to time off during their working hours to attend adoption appointments. The reason for the appointment must be so that the adopter can have contact with the child or children, or for other related purposes.

Employees or agency workers adopting on their own are entitled to paid time off for no more than 5 appointments. This also applies if the employee or agency worker is the main adopter of a joint adoption (whichever of them has elected to take adoption leave in respect of the child). The other joint adopter is limited to 2 unpaid appointments.

Each appointment is limited to a period of 6.5 hours. An agency worker can be paid either by the hiring business or the employment agency.

You can only take time off for an appointment before a child has been placed with you. If more than one child is being adopted at the same time, the number of appointments and amount of time off will still be the same.

If you use the right to take time off to attend an adoption appointment, you will no longer have a right to take paternity leave for that child.

Eligibility of agency workers

An agency worker will need to have worked for at least 12 weeks in order to have the right to attend adoption appointments. This is required by the Agency Workers Regulations 2010.

During the 12-week period, you must not have taken on a different role or had a break between assignments.

Making a request to attend an adoption appointment

If your employer needs you to notify them before taking time off for an appointment then, within 14 days of the intended appointment, you must provide your employer with written confirmation of the following:

  • If you are the main adopter of a joint adoption, a declaration that you have chosen to take time off as the main adopter.
  • Whether you would like the time off to be paid or unpaid.
  • The appointment has been arranged by or at the request of the adoption agency.
  • The date and time of the appointment.

Dealing your request

Your employer could refuse your request for time off if it is reasonable to do so. However, there is no legal guidance on when it would be reasonable to do this. You will have a right to start a tribunal claim if your right has been unreasonably refused.

A tribunal claim must normally be made within 3 months from the date of the refused appointment. If successful, damages will be awarded for twice the amount that you would have been paid if you attended the appointment (usually calculated at an hourly rate).

Employees will be able to claim automatic unfair dismissal if the main reason for their dismissal is that they took time off to attend an adoption appointment. In addition, employees and agency workers are protected from being subjected to a detriment for taking time off to attend an adoption appointment, whether it is paid or unpaid.

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.

Rights when returning to work

You will have the right return to a job with the same seniority, pension rights and similar rights. You will also have the right to return to a job with the same terms and conditions (including remuneration) that are as favourable as they would have been if you had not gone on leave.

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.

If you're 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).

Right to return to the same job

Different rules apply depending on whether you work in Northern Ireland, England, Wales or Scotland.

If you work in England, Wales or Scotland, you will be entitled to return to the same job you had before taking leave if any one of the following is true:

  • You only took ordinary adoption leave (OAL).
  • You took no more than 4 weeks of parental leave.
  • The ordinary adoption leave followed another period of statutory leave (except parental leave) and the total leave taken for the child was 26 weeks or less.

If you work in Northern Ireland, you will be entitled to return to the same job you had before taking leave if any one of the following is true:

  • You only took OAL.
  • You took no more than 4 weeks of parental leave (in addition to OAL).
  • You have taken 2 or more consecutive periods of any other statutory leave (such as shared parental leave, but not additional adoption leave or parental leave) that results in you taking a total of more than 4 weeks' statutory leave for your child.

If you qualify but don't get your old job back, 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.

Right to return to the same or alternative job

You will have the right to return to the same job after having taken:

  • some additional adoption leave; or
  • more than 4 weeks of parental leave; or
  • a period of OAL or parental leave that does not comply with the above-mentioned right to return to the same job.

However if it isn't reasonably possible for your employer to give back your old job, you'll have the right to return to another job that is both suitable and appropriate for you to do. A suitable and appropriate alternative job must be as close as possible to the previous role that you held.

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.

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 adoption 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 a promotion, facilities or training opportunities which would normally have been made available to you.

In addition, an employer must not subject an employee to any detriment by acting (or deliberately not acting) because they took or wanted to take an antenatal appointment.

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).

Dismissal and adoption leave

You shouldn't be dismissed or be made redundant because you took, or wanted to take, adoption leave. Your employer can't prevent you from returning to work after your adoption leave ends.

In addition, you shouldn't be dismissed because you took or wanted to take time off to attend an antenatal appointment, or because they believed you were going to do so.

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