Adoption Leave Obligations

Guidance for SMEs

Employees who meet the conditions are entitled to paid Statutory Adoption Leave (SAL) This leave closely mirrors the arrangements for Statutory Maternity Leave and provides for 26 weeks leave followed by an additional 26 weeks unpaid additional adoption leave.

Eligibility

Adoption leave is available to:

• An employee that has worked for at least 26 weeks by the date on which she/he is matched for adoption with a child.
• The employee must be adopting a child placed for adoption in the UK. Regulations covering children adopted from overseas are available from the DTI.
• The employees must be adopting through an adoption agency and the employer may request a matching certificate, signed by the adoption agency to confirm the proposed date of placement. SAL is not available for the adoption of a stepchild or grandchild.
• Adoption leave can only be taken by one parent. The other parent may be entitled to paternity leave (See Working Families SME Factsheet Paternity Leave Obligations)

Process

After an employee has been notified by their adoption agency that they have been matched with a child they should inform their employer, within seven days of the notification, of the date on which the child has been placed or is expected to be placed with him/her and the date they would like the adoption leave to start.

The employer can request this notification in writing and must respond to the employee within 28 days in writing stating the date on which the employee is expected to return to work if the full entitlement (1 year) is taken.

Adoption leave cannot start more than 14 days before the child is expected to be placed with the employee and must be started at the latest on the date the placement starts.

Statutory Adoption Pay

Statutory Adoption pay (SAP) is be paid throughout the 26 week period of Ordinary Adoption Leave. To qualify employees must have earnings that reach the lower earning limit (currently £84 per week 2006/7). To claim SAP an employee must provide the employer with the matching certificate from the adoption agency.

Statutory Adoption Pay is be paid at the lower of a flat rate determined by government (currently £108.85 per week 2006/7) or 90% of normal weekly earnings. An employer is entitled to claim back 92% of the SAP. (Small employers with low NI contributions may be able to claim back up to 104.5%.)

Employers will be reimbursed through adjustments made to national insurance and tax contributions. To make a claim, contact your tax office.

Additional Adoption Leave

An employee who is eligible for Ordinary Adoption Leave is also entitled to a further 26 weeks of unpaid Additional Adoption Leave which must follow on immediately. No additional notice is required to take it.

Returning to work

Adopters who are taking their full entitlement to adoption leave (1 year) do not have to give notice to return to work. If an adopter wants to return to work earlier, then he/she must give the employer 28 days written notice. Where the basic 26 week Ordinary Adoption Leave has been taken, the employee has a aright to return to the same job on the same terms and conditions, regardless of the size of the workforce (i.e. even if you employ fewer than 6 people). Where Additional Adoption Leave has been taken the employee should be allowed to return to his/her old job unless this is not reasonably practicable. In such circumstances a suitable job at a similar status and conditions should be offered.

If the employee refuses the job without good reason, they will have no redress to an Employment Tribunal on grounds of unfair dismissal. If you employ fewer than6 people and it is not reasonably practicable for you to take an employee back after Additional Adoption Leave, then the employee may not be able to claim automatic unfair dismissal. However other claims may be made.

Disrupted Placement

If the placement of the child is disrupted or the child dies, adoption leave and pay will continue for 8 weeks following notification of the date of this event.

Contractual Rights and Remuneration

An employee on Statutory Adoption Leave preserves continuity of employment and continues to be regarded in law as an employee. During the 26 weeks of Ordinary Adoption Leave an employee is entitled to receive all contractual rights except remuneration. Contractual rights include pension rights holiday entitlement and other benefits such as a company car, unless provided exclusively for business use. It is not clear from the legislation whether other forms of "pay" (such as bonuses, subsidies etc.) are regarded as "contractual rights" or "remuneration". It is however advisable to give an employee a proportion of any salary related bonuses earned during the period before the leave started.

Accrual of holiday during SAL

Holiday accruals as normal under the contract during the 26 weeks of Ordinary Adoption Leave. During Additional Adoption Leave the employee accrues holiday under the Working Time Regulations. This entitles all employees to 20 days holiday per year. You may find it easier to allow the employee to continue accruing holidays as laid down in their contract rather than attempting to administer two systems.

Additional considerations

The number of 'newly matched' adoptions in the UK in any year are small. People choosing to adopt provide a valuable service to society and as their employer you may wish to support them in this. Prospective adoptive parents typically require a certain amount of time off prior to being matched - to meet with the statutory agencies and to be assessed for their suitability as adoptive parents. If your business allows it, you may wish to extend your Adoption Leave Policy to provide reasonable time off for these meetings (equivalent to the right of pregnant employees to attend appointments for ante-natal care).

For further information see:

www.dti.gov.uk

A Factsheet of this nature can only provide general guidance. It should not be used as a substitute for independent legal advice. While every effort has been made to ensure the accuracy of its content, we cannot be held responsible for any errors.

June 2006

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