EMPLOYMENT LEGISLATION

ADOPTIVE PARENTS – RIGHTS TO LEAVE AND PAY
A basic summary (PL515 Rev 1)  

Rights to leave and pay for adoptive parents were  introduced for employees whose children are placed with them on or after 6 April 2003. .

This document provides some basic information on the rights to:

·                     adoption leave and pay

·                     paternity leave and pay when a child is placed for adoption.

It does not attempt to describe the rights in detail and should not be taken as an authoritative statement of the law.

This document covers only the leave and pay rights where a child is matched and placed for adoption within the UK. The measures will also be available where a child is adopted from overseas, although the detailed operation of the scheme will differ slightly for practical reasons. Further guidance on the rights in cases of inter-country adoptions will be available in due course.
 

The rights to adoption and paternity leave and pay entitle eligible employees to take paid leave when a child is newly placed for adoption. Adoption leave and pay are available to:

·                     individuals who adopt

·                     one member of a couple where a couple adopt jointly (the couple must choose which partner
            takes adoption leave)

The partner of an individual who adopts, or the other member of a couple who are adopting jointly, may be entitled to paternity leave and pay.

Adoption leave and pay
 

Eligibility
 

To qualify for adoption leave, an employee must:

·                     be newly matched with a child for adoption by an adoption agency

·                     have worked continuously for their employer for 26 weeks ending with the week in which they are
            notified of being matched with a child for adoption  

Adoption leave and pay is not available in circumstances where a child is not newly matched for adoption, for example when a step-parent is adopting a partner’s children.

Length of adoption leave

Adopters are entitled to up to 26 weeks’ ordinary adoption leave followed immediately by up to 26 weeks’ additional adoption leave - a total of up to 52 weeks’ leave.
 

Ordinary adoption leave is normally paid leave.
 

Additional adoption leave is usually unpaid although an adopter may have contractual rights to pay during his period of additional adoption leave.
 

They can choose to start their leave:

·                     from the date of the child’s placement (whether this is earlier or later than expected), or

·                     from a fixed date which can be up to 14 days before the expected date of placement.

Leave can start on any day of the week.
 

Only one period of leave is available irrespective of whether more then one child is placed for adoption as part of the same arrangement.
 

If the child’s placement ends during the adoption leave period, the adopter can continue adoption leave for up to eight weeks after the end of the placement.
 

Statutory Adoption Pay
 

During their adoption leave, most adopters are entitled to Statutory Adoption Pay (SAP) from their employers.

Statutory Adoption Pay is paid by employers for up to 26 weeks. The rate of Statutory Adoption Pay is the same as the standard rate of Statutory Maternity Pay – from April 2005, this is £106 a week or 90% of average weekly earnings if this is less than £106.
 

Adopters who have average weekly earnings below the Lower Earnings Limit for National Insurance Contributions (£82 a week from April 2005) do not qualify for SAP. They should contact their adoption agency as they may be able to receive financial support in relation to their adoption payment. Additional financial support may be available through Housing Benefit, Council Tax Benefit or Tax Credits. Further information is available from your local Jobcentre Plus office or Social Security office.
 

Notice of intention to take adoption leave
 

Adopters are required to inform their employers of their intention to take adoption leave within 7 days of being notified by their adoption agency that they have been matched with a child for adoption, unless this is not reasonably practicable. They need to tell their employers:

·                     when the child is expected to be placed with them and

·                     when they want their adoption leave to start.

Adopters can change their mind about the date on which they want their leave to start providing they tell their employer at least 28 days in advance (unless this is not reasonably practicable). They must tell their employer the date they expect any payments of SAP to start at least 28 days in advance, unless this is not reasonably practicable.
 

Employers have 28 days in which to respond to their employees’ notification of their leave plans. An employer must write to the employee, setting out the date on which they expect the employee to return to work if the full entitlement to adoption leave is taken. A model letter for employers to use (if they wish to do so) is now available.
 

Matching certificate
 

Employees must give their employer documentary evidence – from their adoption agency as evidence of their entitlement to SAP. Employers can also ask for this as evidence of entitlement for adoption leave. Employees should ask their adoption agency for this documentary evidence, which may be provided in the form of a matching certificate which includes basic information on matching and expected placement dates. Click here to access matching certificate.
 

Contractual benefits
 

Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise), throughout their 26-week ordinary adoption leave period. However, most adopters are entitled to SAP during this period. If the employee has a contractual right to adoption leave as well as the statutory right, he may take advantage of whichever is the more favourable. Any adoption pay to which he has a contractual right reduces the amount of SAP to which he is entitled.
 

During additional adoption leave, the employment contract continues and some contractual benefits and obligations remain in force, for example compensation in the event of redundancy and notice periods.
 

Return to work after adoption leave
 

Adopters who intend to return to work at the end of their full adoption leave entitlement do not have to give any further notification to their employers.
 

Adopters who want to return to work before the end of their adoption leave period, must give their employers 28 days’ notice of the date they intend to return.
 

Protection from detriment and dismissal
 

Employees are protected from suffering detriment or unfair dismissal for reasons related to taking, or seeking to take, adoption leave. Employees who believe they have been treated unfairly can complain to an employment tribunal.
 

Employers’ recovery of payments
 

Employers can recover the amount of Statutory Adoption Pay (SAP) they pay out in the same way as they can claim back Statutory Maternity Pay. Employers can claim back 92% of the payments they make, with those eligible for small employers’ relief able to claim back 100% plus an additional amount in compensation for the employer’s portion of National Insurance contributions paid on SAP.

In addition, employers who need to can get funding in advance for payments of SAP from the Inland Revenue.
 

Paternity leave and pay (adoption)
 

Following the placement of a child for adoption, the rights to paternity leave and pay give eligible employees the right to take paid leave to care for their new child or support the adopter.

Eligibility
 

Employees must satisfy the following conditions in order to qualify for paternity leave. They must:

·                     have or expect to have responsibility for the child’s upbringing

·                     be the adopter’s spouse or partner

·                     have worked continuously for their employer for 26 weeks ending with the week in which the
            adopter is notified of being matched with a child.  

Employers can ask their employees to provide a self-certificate (see below for further details) as evidence that they meet these eligibility conditions.
 

Length of paternity leave
 

Eligible employees are entitled to choose to take either one week or two consecutive weeks’ paid paternity leave (not odd days).

They can choose to start their leave:

·                     from the date of the child’s placement (whether this is earlier or later than expected), or

·                     from a chosen number of days or week after the date of the child’s placement (whether this is
            earlier or later than expected), or  

·                     from a chosen date which is later than the date on which the child is expected to be placed with
            the adopter.  

Leave can start on any day of the week on or following the child’s placement but must be completed within 56 days of the child’s placement.

Only one period of leave is available to employees irrespective of whether more than one child is placed together.
 

Statutory Paternity Pay
 

During their paternity leave, most employees are entitled to Statutory Paternity Pay (SPP) from their employers.

Statutory Paternity Pay is paid by employers for either one or two consecutive weeks as the employee has chosen. The rate of Statutory Paternity Pay is the same as the standard rate of Statutory Maternity Pay – from April 2005, this will be £106 a week or 90% of average weekly earnings if this is less than £106.
 

Employees who have average weekly earnings below the Lower Earnings Limit for National Insurance purposes (£82 a week from April 2005) do not qualify for SPP. Employees who do not qualify for SPP, or who are normally low paid, may be able to get Income Support while on paternity leave. Additional financial support may be available through Housing Benefit, Council Tax Benefit, Tax Credits or a Sure Start Maternity Grant. Further information is available from your local Jobcentre Plus office or Social Security office.
 

Notice of intention to take paternity leave
 

Employees must inform their employers of their intention to take paternity leave within seven days of the adopter being notified by their adoption agency that they have been matched with a child, unless this is not reasonably practicable. They must tell their employers:

·                     the date on which the adopter was notified of having been matched with the child

·                     when the child is expected to be placed

·                     whether they wish to take one or two weeks’ leave

·                     when they want their leave to start.

Employees can change their mind about the date on which they want their leave to start providing they tell their employer 28 days in advance (unless this is not reasonably practicable). Employees can tell their employers the date they expect any payments of SPP to start at least 28 days in advance, unless this is not reasonably practicable.
 

Self certificate
 

Employees must give their employers a completed self certificate as evidence of their entitlement to SPP.  A model self certificate for employers and employees to use (if they wish to do so) is available. Employers can also request a completed self certificate as evidence of entitlement to paternity leave. The self certificate must include a declaration that the employee meets certain eligibility conditions and provide the information specified above as part of the notice requirements.
 

By providing a completed self certificate, employees can satisfy both the notice and evidence conditions for paternity leave and pay. Employers are not expected to carry out any further checks.
 

Contractual benefits
 

Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise), throughout their paternity leave. However, most employees are entitled to SPP for this period. If the employee has a contractual right to paternity leave as well as the statutory right, he may take advantage of whichever is the more favourable. Any paternity pay to which he has a contractual right reduces the amount of SPP to which he is entitled.

Return to work after paternity leave

Employees are entitled to return to the same job following paternity leave.

Protection from detriment and dismissal
 

Employees are protected from suffering unfair treatment or dismissal for taking, or seeking to take, paternity leave. Employees who believe they have been treated unfairly can complain to an employment tribunal.
 

Employers’ recovery of payments
 

Employers can recover the amount of Statutory Paternity Pay (SPP) they pay out in the same way as they can claim back Statutory Maternity Pay. Employers can claim back 92% of the payments they make, with those eligible for small employers’ relief able to claim back 100% plus an additional amount in compensation for the employer’s portion of National Insurance contributions paid on SPP.
 

In addition, employers who need to can get funding in advance for payments of SPP from the Inland Revenue.
 

Other family friendly rights
 

Right to apply to work flexibly
 

A right for parents of young, or disabled, children to request flexible working was introduced inApril 2003 eligible employees who are parents of children aged under six, or of disabled children aged under 18, will have the right to apply to work flexibly. Their employers will have a duty to consider such requests seriously. See Flexible working – the right to apply (PL516).
 

Changes to maternity rights
 

Existing maternity rights were changed in April 2003 for more information see Maternity leave – changes (PL507)
.

Right to paid paternity leave (birth)
 

A right to paternity leave and pay (in connection with the birth of a child) was introduced in April 2003. Eligible employees can take paid time off to care for their new baby and support the mother.. See Paternity - leave and pay (PL514).
 

Rights to parental leave and time off for dependants
 

Employees – both mothers and fathers – who have completed one year’s service with their employers are entitled to 13 weeks’ (unpaid) parental leave to care for their child. Parental leave can usually be taken up to five years from the date of birth or in cases of adoption five years from the date of placement (or the child’s 18^th birthday, if that is sooner).
 

Parents of disabled children are entitled to 18 weeks’ parental leave (previously 13 weeks) up to the child’s 18^th birthday, providing they have the qualifying length of service. See Parental leave (PL509) (228Kb).
 

All employees are also entitled to take a reasonable amount of (unpaid) time off work to deal with an emergency or unexpected situation involving a dependant. See Time off for dependants (96Kb).
 

Further information
 

Both employers and employees can use the DTI website and its interactive guidance site TIGER to work out entitlements to paternity and adoption leave and pay
.

The guidance booklets mentioned in this document are available from the DTI Publications Orderline on 0870 1502 500 or can be ordered over the Internet.
 

Employers can get more information on SAP and SPP from the Inland Revenue who produce an employer's helpbook E16 Pay and time off work for adoptive parents (copies available from 08457 64 66 46). For additional help, employers may phone the employers’ helpline on 08457 14 31 43.
 

Further advice on employment law matters, including the new rights, as well as good practice guidance is available from Acas.
 

Small businesses can register at businesslink to receive reminders and updates about changes to employment law. Information is also available on a wide range of help for small businesses.
 

Information on all aspects of employment legislation can usually be provided by accountants, citizens advice bureaux, employer organisations, legal advisers, low pay units, trade unions and a number of private sector and voluntary bodies.