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URN No: 08/809/B
KEY FACTSThe rights to paternity leave and statutory paternity pay (SPP) allow an eligible employee to take up to two weeks’ paid leave following placement for adoption. Employees may be eligible for paternity leave and SPP if they are a couple and the other person decided to claim adoption leave and/or SAP. They may also be eligible if they are both the partner of an individual who is adopting and they intend to help care for the adopted child. The entitlement is to take either one or two consecutive weeks’ leave. During this time they may also be eligible for SPP, currently paid at £117.18 per week from 6 April 2008 or 90% of their average weekly earnings, whichever is the lesser. The rate of SPP is subject to review every April and may change. Employers who are liable to pay SPP may reclaim 92% of the amount they pay from Her Majesty’s Revenue and Customs. Businesses may be eligible to claim back 104.5% of the money they pay out in SPP if their total National Insurance Liability in the previous tax year was £45,000 or less. Employees who take paternity leave are entitled to return to the same job and are protected against unfair treatment (detriment) and dismissal on grounds related to taking paternity leave. When pay and leave can be takenStatutory paternity pay and leave may be taken at any time during the 56 days beginning with the date of the child’s placement. Other entitlementsEmployees may also have a right to parental leave, time off for dependants, the right to request flexible working, and the partner of the employee taking paternity leave may also have a right to paid adoption leave (see Adoption Leave and Statutory Adoption Pay). |
The details set out in this section apply only to those adopting a child from within the UK. The different rules which apply where a child is adopted from overseas are set out in the section on adoptions from overseas.
To qualify for paternity leave a person must be an employee (that is to say, they must work under a contract of employment).
The employee must:
To qualify for statutory paternity pay a person must be an employed earner (that is to say, they must be working for someone who is liable to pay the employer’s share of their Class 1 National Insurance Contributions) and must be earning at least the lower earnings limit to qualify for statutory adoption pay. In case of doubt contact your local HMRC office. For example, agency workers are usually treated as employed earners.
The person claiming statutory paternity pay must:
If an employee is eligible for SPP but leaves their job for any reason – including being dismissed – they are still entitled to SPP.
The details set out in this section apply only to those adopting a child from within the UK. The different rules which apply where a child is adopted from overseas are set out in the section on adoptions from overseas.
Paternity leave and SPP can begin any time from the date of the child’s placement with the adopter but must be taken within 56 days of this date. The employee can choose to begin paternity leave and pay on (i) the date on which the child is placed with the adopter, even if this is earlier or later than the expected date of placement; or (ii) a predetermined date after the date of placement; or (iii) a date falling a specified number of days after the expected date of placement.
The details set out in this section apply only to those adopting a child from within the UK. The different rules which apply where a child is adopted from overseas are set out in the section on adoptions from overseas.
Employees must give their employers notice of their intention to take paternity leave and pay. If an employee is entitled to both leave and pay the notice they give for leave can count for pay as well.
An employee must tell their employer that they intend to take paternity leave no more than seven days after the day that the adopter is notified of having been matched with the child or, if this is not reasonably practicable, as soon as is reasonably practicable. They can tell their employer earlier than this if they want to.
In most cases employees who are eligible for SPP will notify their employer of the date they want their pay to begin at the same time as giving notice of leave. In most cases employees will want their SPP to start on the same date as their leave. In any event, an employee must give the employer at least 28 days’ notice of the date on which they want their SPP to start, or, if this is not reasonably practicable, as soon as is reasonably practicable
An employee can change their mind about when they want their leave to start as long as they give their employer at least 28 days’ notice before the new date they want to leave to start.
If the date of placement changes before the employee begins paternity leave, the employee should discuss the situation with the employer as soon as possible, and give the appropriate notice to change the start date (see above). If the employer and employee are unable to resolve and disagreement about the dates of paternity leave they should contact Acas (08457 474747). If the disagreement concerns pay, they should contact Her Majesty’s Revenue and Customs (08457 143143).
The employee must tell the employer (this does not need to be in writing unless the employer asks for it):
In order to claim SPP the employee must also give the employer a signed declaration that:
The employer may also ask for this declaration for paternity leave.
An employee can give the employer a completed self certificate (see Businesslink) as evidence of their entitlement, which will cover all the necessary points above. The employer should accept this declaration at face-value unless they have very strong reasons for suspecting that it is false.
There is no requirement for the employer to confirm the employee’s date of return from paternity leave.
If the employee has a contractual right to paternity leave as well as their statutory right, they may take advantage of whichever is the more favourable. The rate of SPP to which the employee is entitled is the minimum which should be paid. If the employee also has a contractual entitlement to paternity pay for the same period in which they are also entitled to Statutory Paternity Pay which is more than the statutory amount, the employer must top up the statutory amount to the amount of contractual pay, If the amount of contractual pay is less than the statutory amount the employer must pay the statutory amount.
Paternity leave lasts for either one or two consecutive weeks, at the employee’s request. The contract of employment continues throughout paternity leave, unless either the employer or employee expressly ends it or it expires.
During paternity leave an employee has a statutory right to continue to benefit from the terms and conditions of employment which would have applied had they been at work instead of on leave, except for the terms providing for the employee’s wages or salary.
Examples of contractual terms and conditions that will continue to apply during paternity leave might include: any contractual holiday entitlement; participation in share schemes; reimbursement of professional subscriptions; the use of a company car or mobile phone (unless provided for business use only); and other perks such as health club membership.
During paternity leave an employee continues to be employed. This means that this period counts towards the employee’s period of continuous employment for the purposes of entitlement to other statutory employment rights (for example, the right to a redundancy payment). It also counts for assessing seniority, pension rights, and other personal length-of-service payments, such as pay increments under the employee’s contract of employment.
The employee continues to accrue statutory annual leave during paternity leave, although it is not possible to take annual leave at the same time as paternity leave.
When an employee returns to work from paternity leave they have a right to return to the same job on the same terms and conditions as before the paternity leave began.
The employee is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which may have been introduced for the grade or class of work while the employee was away, as if they hadn’t been away.
During any period of ‘paid paternity leave’ an employer’s pension contribution should be calculated as if the employee is working normally and receiving the normal remuneration for doing so. ‘Paid Paternity Leave’ is when the employee is receiving SPP or contractual (occupational) paternity pay, or a combination of both.
If the rules of the pension scheme require the employee to contribute towards their occupational pension, the employee contributions should be based on the amount of pay they receive during the paternity leave period – whether Statutory Paternity Pay, contractual pay, or a combination of both.
During paternity leave most employees will be eligible for SPP. This is a weekly payment made by employers for either one or two consecutive weeks.
Employers should refer to the HMRC Helpbook E16 (“Pay and time off work for adoptive parents” or telephone 08457 646646) which explains in detail what they have to do to work out if the employee is eligible for SPP and how much to pay and when. There is also a supplement to this book which covers special cases. The guidance set out below is intended to provide an overview only and is not a substitute for the HMRC guidance mentioned above.
HMRC also provide online calculators to assist employers in working out whether their employee is eligible for SAP and how much should be paid. Alternatively the HMRC Employers Helpline can help with calculations. See HMRC guidance on statutory payments or call 08457 143 143.
In order to claim SPP an employee must have given the employer sufficient notice and provided the information set out earlier in this section.
From 6 April 2008, Statutory Paternity Pay is paid at a rate of £117.18 per week or 90% of average weekly earnings if this is less. Please note that this rate is subject to review every April and may change. If more than one child is placed for adoption on the same date the amount of SPP paid is exactly the same as if there were only one child. This is because SPP is intended to provide an element of wage replacement to enable the employee to take paternity leave, and is not a contribution towards child-care costs.
Once the employee tells the employer that they wish to claim SPP, the employer must check that the employee satisfies the qualifying conditions (set out above).
The employer will need to work out the employee’s average weekly earnings in order to find out whether they qualify for SPP. Further information to assist employers in doing this is provided in“Pay and time off work for adoptive parents” or telephone 08457 646646.
HMRC also provide online calculators to assist employers in working out whether their employee is eligible for SPP and how much should be paid. Alternatively the HMRC Employers Helpline can help with calculations. See http://www.hmrc.gov.uk/calcs/sppa.htm or call 08457 143 143.
SPP is a weekly payment due at the end of each SPP week (although the week can start on any day and then run for 7 days – eg from Wednesday to Tuesday).
SPP is treated as earnings so an employer should make any deductions that are due, such as income tax and NI contributions.
SPP cannot be paid for more than 2 weeks, or in respect of any weeks not taken consecutively. It can not be paid for any week in which the employee does some work for the employer.
Employers are able to reclaim 92% of the money they pay out in SPP from HMRC. If their National Insurance liability was £45,000 or less in the previous tax year they may reclaim 100% of the money they pay out, plus another 4.5% in respect of employers’ National Insurance contributions. Employers should contact the HMRC Employers’ Helpline (08457 143 143) for more information.
If the employee has more than one employer they may be entitled to SPP from each one if they satisfy the eligibility and earnings criteria for each. Employers should contact the HMRC Employers’ Helpline on 08457 143 143 if they are in any doubt.
If an employee disagrees with their employer’s decision about their entitlement to SPP and this cannot be resolved between employer and employee, the employee may ask HMRC for a decision. The employee should contact the local HMRC office.
There are a number of other statutory entitlements which employees or their partners may be able to take advantage of. Separate guidance is provided on each of these, but in summary, they include:
Parental leaveParental leave is a right to take time unpaid time off work to look after a child. Adopters may take 13 weeks’ parental leave up to the fifth anniversary of their child’s date of placement (or 18th birthday where this is sooner than the fifth anniversary of placement) to look after a child or make arrangements for the child’s welfare. Parents of disabled children may take 18 weeks’ parental leave up to their child’s 18th birthday. Parents can use it to spend more time with children and strike a better balance between their work and family commitments. The right applies to parents and to a person who has obtained formal parental responsibility for a child. For more information see Parental Leave: A Guide for Employers and Employees. Time off for dependantsTime off for dependants is a right allowing employees to take a reasonable amount of time off work to deal with certain unexpected or sudden emergencies and to make any necessary longer-term arrangements. For more information see Time off for Dependants: a Guide for Employers and Employees The right to request flexible workingEmployees who are the parents of young children (up to the age of 6 or up to 18 in the case of disabled children) have the right to request flexible working patterns. Employers are required to give such requests serious consideration, and may only turn such requests down if they follow a set procedure and are able to justify the decision on set business grounds. From 6 April 2007 the right to request flexible working will also apply to employees who are carers of adults. Full advice and guidance on the right to request flexible working is provided here. Adoption leave and pay |
KEY FACTSBefore taking adoption or paternity leaveBefore taking adoption leave or paternity leave (adoption) an employee should inform their employer no later than seven days after they (or the adopter) are notified of having been matched with a child. An employer must notify the employee of the end date of any adoption leave within 28 days of receiving the employee’s notification. There is no requirement on the employer to notify an employee of the end date of paternity leave. Employees can change the date they start their adoption or paternity leave as long as they give 28 days’ notice to their employer The employee can give notice for statutory adoption or paternity pay at the same time During adoption leaveThe employer may make contact with the employee (and vice-versa) while they are on adoption leave, as long as the amount and type of contact is not unreasonable, to discuss a range of issues, e.g. to discuss plans for returning to work, or to keep the employee informed of important developments at the workplace. The employee can do up to 10 days’ work under the contract of employment during adoption leave, as long as both employee and employer have agreed for this to happen, and agree on what work is to be done and how much the employee will be paid for it. No work may be done during a paternity leave or pay period. The employee can change the dates of return to work from adoption leave as long as they give eight weeks’ notice to the employer. If they return at the end of the full 52 weeks of adoption leave and have not told the employer that they wish to come back at any other time, they do not need to provide any further notice. If the employee does not wish to return to work after adoption leaveIf the employee decides not to return to work at the end of adoption leave they should give the employer at least the notice required by their contract, or, where there is none, the statutory notice. However, the employee is entitled to continue to receive the full amount of statutory adoption leave and pay, even if the employee tells the employer that they will not be returning to work. |
Please see previous sections of this guidance for information on notification requirements before taking adoption leave or pay or paternity leave or pay
Unless otherwise notified, the date on which an employee returns to work will normally be the first working day 52 weeks after the adoption leave began, or one or two weeks after paternity leave began.
If the employee wishes to return to work before the end of the full adoption leave period (this will normally be the end date the employer confirmed before the employee went on leave), the employee must give the employer eight weeks’ notice of the return to work. This notice requirement applies during both ordinary and additional adoption leave. The notice period is the minimum the employer is entitled to expect, but the employer can of course accept less or no notice at their discretion.
If the employee attempts to return to work earlier than the end of the adoption leave period without giving the employer eight weeks’ notice, the employer may postpone the employee’s return until the full eight weeks’ notice has been given. However, the employer may not postpone the return to a date later than the end of the adoption leave period.
An employee whose return has been postponed under these circumstances is not entitled to receive wages or salary if they return to work during the period of postponement. However, if the employer didn’t provide appropriate notification of when the adoption leave should end the employee is not obliged to give the eight weeks’ notice.
For example, if an employee was due to return to work after 52 weeks’ adoption leave on 1 August, but then decided to return to work after 39 weeks of leave (that is, on 9 May) they would need to give the employer eight weeks’ notice of the new date (that is, by 14 March).
An employee who has notified their employer that they wish to return to work before the end of the full 52 weeks of adoption leave, as set out in the paragraphs above, is entitled to change their mind. However, in these circumstances they should give the employer notice of this new, later, date of return at least eight weeks before the earlier date.
For example, if, having started adoption leave, an employee decides not to take the full entitlement of 52 weeks and gives the employer notice of a return after six months (for example, on 1 October) the employee can still change their mind and tell the employer that they will take a longer period away – up to the full year of adoption leave – as long as they give eight weeks’ notice before the earlier date (in this case, eight weeks before 1 October – ie 6th August).
An employee who does not wish to return to work after adoption leave must give their employer the notice of termination required by the contract of employment. However, it will usually help the employer if the employee can give as much notice as possible. As long as they specify the date on which they wish to terminate the contract (this could be the first day the employee was due back at work after adoption leave) this will not, of itself, mean that the employee is no longer entitled to adoption leave or pay for the rest of the adoption leave period. The Government therefore encourages employees who do not wish to return to work after their adoption leave to give their employers as much notice as possible, pointing out that doing so will not automatically end their leave or pay.
During the adoption leave period an employer may make reasonable contact with an employee, and in the same way an employee may make contact with their employer. The frequency and nature of the contact will depend on a number of factors, such as: the nature of the work and the employee’s post, any agreement that the employer and employee might have reached before leave began as to contact; and whether either party needs to communicate important information to the other, such as for example news of changes at the workplace that might affect the employee on return to work.
The contact between employer and employee can be made in any way that best suits either or both of them. For example, it could be by telephone, by email, by letter, involving the employee making a visit to the workplace, or in other ways.
Employers should note that they should, in any event, keep the employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were working.
Employers and employees will often find it helpful, before adoption leave starts, to discuss arrangements for staying in touch with each other. This might include agreements on the way in which contact will happen, how often, and who will initiate the contact. It might also cover the reasons for making contact and the types of issue that could be discussed.
What constitutes “reasonable” contact will vary according to the circumstances. Some employees will be happy to stay in close touch with the workplace and will not mind frequent contact with the employer. Others, however, will prefer to keep such contact to a minimum.
Employees may, by agreement with their employer, do up to ten days’ work – known as “Keeping in Touch Days” - under their contract of employment during the adoption leave period. Such days are different to the reasonable contact that employers and employees may make with one another – described in the section above – as during Keeping in Touch Days employees can actually carry out work for the employer, for which they will be paid.
If the work carried out during one shift straddles midnight it may be counted as one day for the purposes of Keeping in Touch Days, if the employee's normal working pattern is such that this would fall within a normal working day.
The type of work that the employee undertakes on Keeping in Touch Days is a matter for agreement between the two parties. They may be used for any activity which would ordinarily be classed as work under the woman’s contract, for which she would be paid but could be particularly useful in enabling a woman to attend a conference, undertake a training activity or attend for a team meeting.
Work during adoption leave may only take place by agreement between both employer and employee. An employer may not require an employee to work during adoption leave if the employee does not wish to do so, nor does an employee have the right to work Keeping in Touch Days if the employer does not agree to them.
If the employer offers an employee the opportunity to work a Keeping in Touch Day the employee is entitled to turn the opportunity down without suffering any consequences as a result. It is unlawful for an employee to suffer detriment for not agreeing to work Keeping in Touch Days, or for working, or considering such work.
It is also unlawful to dismiss an employee for not agreeing to work a Keeping in Touch Day, or for working or considering such work.
Up to ten days’ work under the employee’s contract of service may be undertaken at any stage during the adoption leave period, by agreement with the employer.
Because Keeping in Touch Days allow work to be done under the employee’s contract of service, the employee is entitled to be paid for that work. The rate of pay is a matter for agreement with the employer, and may be as set out in the employment contract or as agreed on a case-by-case basis. However, the employer will need to bear in mind their statutory obligations about paying staff, such as ensuring they pay at least the National Minimum Wage and their responsibilities to ensure women and men receive equal pay for work of equal value.
If the employee is receiving statutory adoption pay (SAP), the employer should continue to pay SAP for the week in which any Keeping in Touch work is done to the employee. The employer will be able to reclaim this money – or 92% of it, depending on the business size – from HMRC as before.
If the employee is receiving SAP the employer may count the amount of SAP for the week in which the work is done towards the contractual pay agreed by the two parties. However, it will always be possible to agree an amount of contractual remuneration over and above the weekly SAP rate. This is something that both parties need to agree between themselves before any work is done. Whatever amount of money is paid by the employer in respect of Keeping in Touch Days, the employer will continue to be able to recover SAP paid for the week from HMRC as normal.
KEY FACTSAn employee who returns to work after Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions as if they had not been absent, unless a redundancy situation has arisen. An employee who returns to work after Additional Adoption Leave is also normally entitled to return to the same job on the same terms and conditions as if they had not been absent, unless a redundancy situation has arisen. However, if there is a reason other than redundancy which means that it is not reasonably practicable for the employer to take the employee back to the same job, the employee is entitled to be offered suitable alternative work on terms and conditions that are no less favourable. At the end of paternity leave an employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent, unless a redundancy situation has arisen. Employees who have children aged under six or disabled children aged under 18 have the right to request flexible working and their employers have a duty to seriously consider that request. From 6 April 2007 the right to request flexible working will also apply to employees who are carers of adults. It is unlawful to dismiss an employee during or at the end of adoption or paternity leave, or after they resume work, on the grounds that they took adoption or paternity leave. Employees dismissed on these grounds should appeal against the dismissal, as part of the requirements of the Statutory Dispute Resolution Procedures. Failure by employers and employees to use these statutory procedures could result in an increase or reduction of any compensation awarded. The Acas Code of Practice on disciplinary and grievance procedures sets out the statutory dispute resolution procedures that should be followed before an employee may, if the dispute is not resolved, complain to an Employment Tribunal. Employers and employees may also find the general Acas advice on dispute resolution helpful. |
When an employee returns to work from adoption leave they have the right to return to the same job, on the same terms and conditions, as though they had not been absent. However, there can be exceptions to this, if the employee returns after a period of Additional Adoption Leave (during or after the second 26 weeks). See Adoption Leave and Statutory Adoption Pay for further information on the details of adoption leave.
An employee who returns to work after Ordinary Adoption Leave – in other words an employee who has taken no more that 26 weeks’ adoption leave – is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent, unless a redundancy situation has arisen, in which case she is entitled to be offered a suitable alternative vacancy.
An employee who is not allowed to return to their job at the end of Ordinary Adoption Leave, or who is not given the same job back, may assert this right by following the Statutory Dispute Resolution Procedures. Employees will normally need to raise grievances with their employer. The Acas Code of Practice on dispute resolution sets out statutory dispute resolution procedures that should be followed before an employee may, if the dispute is not resolved, complain to an Employment Tribunal. Employers and employees may also find the general Acas advice on dispute resolution helpful.
An employee who returns to work after Additional Adoption Leave – in other words an employee who has taken more than 26 weeks’ adoption leave - is normally entitled to return to the same job on the same terms and conditions of employment as if they had not been absent, unless there is a reason why it is not reasonably practicable for the employee to return to their old job, in which case they should be offered a similar job on terms and conditions which are no less favourable than the original job.
An employee who takes a period of parental leave of four weeks or less immediately after ordinary adoption leave is entitled to return to the same job on the same terms and conditions as if they had not been absent.
An employee who takes a period of parental leave of more than four weeks straight after the end of ordinary adoption leave is treated as though they were returning to work after additional adoption leave (see section above).
An employee who takes a period of parental leave immediately after a period of additional adoption leave is treated as though they were returning to work after additional adoption leave.
Parental Leave is a separate entitlement for employees who have completed one year’s service with their employer. It is a right to unpaid time off. For more information see Parental Leave: A Guide for Employers and Employees.
If there is a reason which makes it impracticable for the employee to return to their original job after additional adoption leave, a similar job must be found for the employee. The new job must be such that:
The work done by the employee is both suitable and appropriate for them to do in the circumstances; and
The terms and conditions of her employment – including the quality of the working environment – are no less favourable to the employee than they would have been had they continued to be employed in their old job.
If the new job that is offered to the employee fulfils the criteria above and the employee refuses it, they will have effectively resigned.
If the new job that is offered to the employee is not suitable or appropriate or if the terms and conditions are less favourable than they would have been if they had returned to their old job, an employee may assert this right by following the Statutory Dispute Resolution Procedures. Employees will normally need to raise grievances with their employer. The Acas Code of Practice on dispute resolution sets out statutory dispute resolution procedures that should be followed before an employee may, if the dispute is not resolved, complain to an Employment Tribunal. Employers and employees may also find the general Acas advice on dispute resolution helpful.
At the end of paternity leave an employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent, unless a redundancy situation has arisen. If a redundancy situation has arisen they are entitled to be offered a suitable alternative vacancy on terms and conditions which are no less favourable.
They are also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they were away.
Employees who are the parents of young children (under the age of 6) or a disabled child up to the age of 18 have the right to request flexible working patterns. Employers are required to give such requests serious consideration, and may only turn such requests down if they follow a set procedure and are able to justify the decision. From 6 April 2007 the right to request flexible working will also apply to employees who care for adults. Full advice and guidance on the right to request flexible working is provided here.
There may be circumstances where a refusal to permit an employee to work part-time amounts to unlawful indirect sex discrimination. For example, it may be more difficult for female employees to fulfil the requirement to work full time, given their child-care commitments, than it would be for male equivalents to do so. In circumstances such as this the employer would need to show that there were objective reasons for asking her to work full-time that had nothing to do with her sex. Further information on sex discrimination is provided by the Women and Equality Unit.
An employee who is dismissed during or after the end of an adoption or paternity leave period, or selected for redundancy in preference to other comparable employees, solely or mainly because they have taken adoption or paternity leave or availed themselves of the benefit of the terms and conditions of employment to which they were entitled during that leave, should appeal against the dismissal as part of the requirement under the Statutory Dispute Resolution Procedures. Failure by employers or employees to use these statutory procedures could result in an increase or reduction to any compensation awarded. The Acas Code of Practice on disciplinary and grievance procedures sets out the statutory dispute resolution procedures that should be followed before an employee may, if the dispute is not resolved, complain to an Employment Tribunal. Employers and employees may also find the general Acas advice on dispute resolution helpful.
It is unlawful to dismiss in certain circumstances where an employee fails to return from adoption leave on time because her employer has given
inadequate or no notification of the end date of the adoption leave (see Adoption Leave and Statutory Adoption Pay).
An employee who is not given their job back, or who is not offered a suitable alternative job, at the end of additional adoption leave will not be regarded as
unfairly dismissed if the employer can show an employment tribunal that:
An employer may dismiss an employee on grounds largely or wholly unrelated to the fact that they have taken or availed themselves of the benefits of adoption or paternity leave, unless the dismissal is unfair for some other reason or amounts to discrimination on grounds of sex or marriage.
Employers must normally ensure they comply with the Statutory Dispute Resolution Procedures to avoid such a dismissal being found to be automatically unfair. Failure to follow the statutory procedures where they apply may lead to an uplift to any award of compensation made.
Further guidance on the statutory dispute resolution procedures and unfair dismissal is available. If the dismissal is on grounds of redundancy, the employee may be entitled to a redundancy payment, and further guidance is available from DTI.