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Adoption

Guide to time of for adoption appointments

From 5 April 2015 there will be a new right for employees and agency workers who are proposing to adopt to take time off work to attend adoption appointments. Whether the time off is paid or unpaid will depend on whether the employee is adopting alone, and if not, who has elected to be the main adopter.

Who can benefit from this new right?

This new right applies to both employees and agency workers.   If it is an employee who is adopting, the employer must give permission for the employee to attend the appointment;  if it is an agency worker, then it is both the temporary work agency and the hirer who must give the necessary permission. 

 To qualify to take time off for an adoption appointment,  an agency worker must have completed the 12 week qualifying period, without breaks between or during an assignment and must not have  taken  a different role with the hirer during the qualifying period.

Adoption appointments take place once the prospective adopter has been notified by the adoption agency that a child is, or is expected, to be placed with him/her for adoption.  The reason for the adoption appointment must either be for the adopter to have contact with the child or for any other purpose connected with the adoption.

In addition a foster parent who has been notified by a local authority in England that a child will be or is expected to be placed with him/her in a fostering for adoption placement will also be entitled to this new right.  However there will be no new right or further right for time off for adoption appointments if the foster parent is subsequently notified by the adoption agency that the child is to be or is expected to be placed with that person for adoption.

How much time off can an employee or agency worker take?

This depends on the adopter’s situation.  If the employee or agency worker is adopting on his/her own, he/she is entitled to take paid time off for 5 appointments arranged or requested by the adoption agency. 

When  a couple are jointly adopting, then only one of the couple will be entitled to paid time off. It remains for the couple to decide which of them will take time off paid. The employer or agency worker wishing to take paid time off will have to provide a signed declaration that they have elected to exercise the right to take paid time off.

For the adopter taking paid time off, the maximum time off during working hours is six and a half hours per occasion. For the adopter who has elected to take unpaid time off to attend an adoption appointments, he/she is entitled to a maximum of 2 appointments, again subject to a maximum duration of six and a half hours per occasion.

Requesting time off

The employer (or temporary worker agency or hirer in the case of agency workers) may choose to require the employee to request time off by providing a document showing the following information:

  • That he/she would like to take paid or unpaid time off
  • The date and time of the appointment
  • That the appointment has been made by or at the request of the adoption agency
  • If they are a joint adopter, a signed declaration that they have elected to take time off.

If the employer chooses to require this information, it may decline an application where the employee fails to provide it.  An employer (or temporary worker agency or hirer) has a general right to refuse an employee’s request for time off but only where it is reasonable to do so.

Where the adoption involves more than one child

Some adoptions will involve more than one child e.g. the adoption of siblings.  In which case, the provisions above apply to the whole arrangement and not to each child being adopted. The maximum number of paid and unpaid appointments remains the same. However the right to take time off for adoption appointments will cease after the placement date for the first child.

Remedies for breach of the right

An employee or agency worker who believes that they have been unreasonably refused the right to paid or unpaid time off for adoption appointments, or have taken the time off on a paid basis but have not in fact been paid, may bring an Employment Tribunal claim. The time limit for bringing such a claim is three months beginning with the day of the appointment in question.

The remedies available are as follows:

  • A declaration
  • A payment of an amount which is twice what the employee or agency worker should have received (where the employer unreasonably refused to allow paid time off)
  • Payment of the amount due (in the case of failure to pay for the time off)
  • Payment based on the formula A x B x 2 ( if the employer unreasonably refused to allow unpaid time off).  Where A is the appropriate hourly rate for the employee or agency worker and B is the number of working hours for which the employee or agency worker would have been entitled to be absent if time off had not been refused.

 Protection from detriment and dismissal

From 30 June 2014 employees are protected from being subjected to a detriment for taking time off, paid or unpaid, to attend an adoption appointment.  Any dismissal where the principal reason is that the employee took time off to attend an adoption appointment, will be an automatically unfair dismissal.

Since 1 October 2014 an agency worker has been  able to claim that they have been subjected to a detriment by any act or failure to act on the ground that the worker took or sought to take paid or unpaid time off work to attend an adoption appointment or received or sought to receive the pay to which they were entitled to when taking time off for adoption appointments.

Guide to statutory adoption leave and pay

This is a guide to statutory adoption rights; some employers may provide leave and benefits beyond the statutory minimums. This may be read together with the example adoption policy, click here to view.

Adoption leave

An employee may be entitled to adoption leave if they are adopting a child under the age of 18 via an adoption agency. The statutory adoption provisions apply whether the agency is in the UK or overseas although this guide only deals with UK adoptions. If you want more information on dealing with an employee who is adopting from an overseas agency, please contact your HR Rely adviser. The statutory adoption provisions do not apply to adoptions that are not arranged through an agency so an employee adopting a step-child will not benefit from the statutory rights.  However, foster parents and employees entering into arrangements with surrogates may be entitled to statutory adoption leave and pay, if the child is placed for adoption by a UK adoption agency.

(NB The definition of who may be matched for adoption is to be extended as of 5 April 2015 to include Local Authority foster parents who are also prospective adoptors).

If a couple are adopting a child, they are not both entitled to adoption leave. Instead they must select which of them is to take adoption leave and the other may take paternity leave.

(NB Additional paternity leave will not be available for children placed for adoption on or after 5 April 2015, although, subject to eligibility, the adoptive parents may take shared parental leave)

Unlike maternity leave, entitlement to adoption leave is dependant on the employee having 26 weeks’ continuous service by the end of the qualifying week. The qualifying week (QW) is the week that the employee is notified of having been matched with a child. NB This qualifying period of 26 weeks will be removed with effect from 5 April 2015.

Duration of leave

From 5 April 2015, employees and agency workers proposing to adopt will be able to take time off to attend adoption appointments.  For more information see our Guide to Time Off for Adoption Appointments.

The entitlement to adoption leave is to 52 weeks’ leave, made up of 26 weeks’ Ordinary Adoption Leave (OAL) and 26 weeks’ Additional Adoption Leave (AAL) provided that certain conditions have been met and the employee has complied with the notification requirements.

The conditions are as follows:

  • the employee has had written notification from the adoption agency that they have been matched to a child and also has been given an Expected Placement Date (EPD);
  • the employee has agreed to the child being placed with them; and
  • the employee’s spouse/partner is not taking adoption leave.

Commencement of leave

The earliest that adoption leave can commence is up to 14 days before the date of placement. The latest date that the leave can commence is the date of placement. This is subject to the employee complying with the notification provisions. (see notification below)

Notification requirements

In order to qualify for adoption leave, the employee must notify the employer of her/his plan to take adoption leave within seven days of the employee receiving written notification from the adoption agency of the match. The employee must confirm in their notification the date that the child is due to be placed and the date when she/he wishes the adoption leave to start. The employer can request that this information is provided in writing and can also ask for evidence of the adoption agency’s name and address, the date when the employee was notified of the match and the expected date of placement. NOTIFICATION OF ADOPTION LEAVE AND EXPECTED DATE OF PLACEMENT (EPD).

Once the employee has given notice, within 28 days the employer must notify the employee of the employee’s return to work date. LETTER ADVISING OF ADOPTION LEAVE END DATE.

The employee may bring forward their adoption leave start date or postpone it. Either way they must give notice 28 days’ before the new start date or original adoption leave start date, whichever is the earlier. The employer must respond within 28 days notifying the employee of the new return to work date. LETTER ADVISING OF REVISED ADOPTION LEAVE END DATE.

Whilst on adoption leave

An employee on adoption leave is entitled to their terms and conditions, with the exception of remuneration, and their service continues to accrue. This means for example, that they continue to accrue holiday entitlement, receive private health insurance, retain private gym membership and use the company car (assuming that latter is for private use as well as business use). The employee is also bound by the obligations in their terms and conditions whilst on adoption leave, which amongst other things means that if they wish to resign from their employment, they must give the appropriate notice under their contract.

Although an employee is not entitled to remuneration whilst on adoption leave, they may be entitled to statutory adoption pay (SAP) (see below).

Keeping in touch (KIT) days

An employee may carry out work or training for up to 10 days without bringing either their SAP or adoption leave to an end. There is however no obligation on the employer to provide the employee with 10 days work nor is there any obligation on the employee to accept such.

If an employee comes in for a KIT day, it is for the employer and employee to agree the basis for payment on those days.

Returning from adoption leave

An employee who wishes to take their full adoption leave entitlement does not need to give the employer notice of the date of return. However the employee can choose to return from adoption leave early, in which case the employee is required to give the employer 8 weeks’ prior notice or 16 weeks notice if the individual is an employee shareholder. If the employee gives insufficient notice, the employer can postpone the date of return either to the original adoption leave return date or a date that would have been the date had proper notice been given. LETTER FOLLOWING EMPLOYEE’S REQUEST FOR EARLY RETURN (ADOPTION LEAVE) and LETTER POSTPONING EMPLOYEE’S EARLY RETURN (ADOPTION LEAVE). The employer will have no right to postpone if it did not provide appropriate notification to the employee of the adoption leave end date.

The employee should return to the same job that they were doing before they went on adoption leave. The employee should have the benefit of any improvement in terms and conditions that arose whilst they were on adoption leave. If however the employee is returning from AAL and it is not practicable for them to return to their original role then they may be given an alternative role. This however must be a suitable alternative in terms of status and terms and conditions.

If an employee fails to return to work they remain an employee and it cannot be assumed that they have resigned. Instead the employee should be treated as any other employee who has not returned to work e.g if the reason the employee has not returned is due to sickness, then the absence procedure should be followed which may include payment of sick pay. If an employee has failed to return to work and the employer did not confirm to the employee the adoption leave end date, it would be unlawful of the employer to discipline the employee for failing to return on time.

Statutory adoption pay

An employee will be entitled to SAP if:

  • they have 26 weeks continuous service at the end of the QW;
  • their average earnings in the eight weeks ending with the QW (Relevant Period) equate to at least the lower earnings limit for National Insurance purposes; and
  • they have provided the employer with the notifications detailed above together with the Matching Certificate. The Matching certificate should be provided at least 28 days before the date the employee intends to start the adoption leave, or as soon as practical where this is not possible.

If the employee does not qualify for SAP the employee should be given an SAP1.

Once an employee qualifies for SAP they remain entitled to SAP even though the employment may subsequently come to an end due to the employee being dismissed or resigning. SAP stops being payable when the employee returns to work or if the adoption leave is disrupted.

SAP is payable for 39 weeks, the first 6 weeks are paid at 90% of the employee’s average earnings over the Relevant Period and the remaining 33 weeks at either the SAP flat rate or 90% of the employee’s normal weekly earnings, whichever is the lower.

Pension

Whilst the employee continues to receive SAP the employer must treat the employee for pension purposes as if they were receiving their normal pay. However the employee is only required to make contributions based on the pay that they actually receive.

Specific legal protection

There are various protections afforded to employees connected with their right to adoption leave.

It is unlawful to subject an employee to a detriment for any reason connected with their right to adoption leave. A dismissal for the same reason will be automatically unfair. An employee does not need any qualifying service to bring a claim of unfair dismissal in these circumstances.

It will also be unlawful, on or after 5 April 2015 to subject an employee to a detriment or dismiss an employee for either:

  • taking or seeking to take paid or unpaid time off to attend an adoption appointment
  • or the employer believes that the employee was likely to take paid or unpaid time off to attend an adoption appointment.

Redundancy

It is automatically unfair to select an employee for redundancy for reasons relating to their adoption leave. In addition to this, an employee who is made redundant whilst on adoption leave has additional protection. They have right to be offered suitable alternative employment to start immediately on the ending of their current contract. This is not limited to suitable alternative employment with their own employer but any associated employer. The effect of this section is that an employee on adoption leave has priority over other employees in terms of a suitable alternative role. Failure to offer the employee suitable alternative work that is available will cause the dismissal to be automatically unfair.

Written reasons

An employer must give an employee written reasons for their dismissal if it takes place whilst they are on adoption leave.

Notice pay

An employee who is entitled to no more than six days more than the minimum period of statutory notice is entitled to receive their usual pay if they are dismissed or resigns with notice whilst on adoption leave.

Disrupted adoption

Sometimes an adoption may be disrupted. This will occur if the adoption leave has started by the time the employee has been notified that the placement will not take place, or the employee dies during the adoption leave or the child is returned to the adoption agency after placement. In these circumstances the employee may remain on adoption leave for a further eight weeks from the end of the week in which the disruption occurred or until the end of the adoption leave period, whichever is the sooner.