EMPLOYMENT
LEGISLATION
ADOPTIVE
PARENTS – RIGHTS TO LEAVE AND PAY
A basic summary (PL515 Rev 1)
The
Government is committed to helping
working parents. Rights to leave and pay for adoptive parents
have been introduced for employees whose children are placed with them on or after 6
April 2003.
At the
same time, the Government is increasing and extending maternity leave and
pay, introducing rights to paid paternity leave, and the right for parents
of young children to apply to work flexibly. The
rights, together with existing rights to parental leave and time off for
dependants, provide parents with more opportunities than ever before to
balance work and family life, whilst being compatible with, and beneficial to
business efficiency.
This
document provides some basic information on the rights to:
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:
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.
Start dates
Both
paid adoption leave and paid paternity leave are available to employees
where an adoption agency notifies the adopter of a match with a child
on or after 6 April 2003.
Both
adoption and paternity leave and pay are
also available to employees where an adoption agency notifies the
adopter of a match with a child before 6 April 2003, but the child is placed on
or after 6 April 2003 (special notice arrangements will apply).
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 2003, this will be £100 a week or 90% of average weekly earnings
if this is less than £100.
Adopters
who have average weekly earnings below the Lower Earnings Limit for National
Insurance Contributions (£75 a week from April 2002) 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:
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 2003, this will be £100
a week or 90% of average weekly earnings if this is less than £100.
Employees who
have average weekly earnings below the Lower Earnings Limit for National
Insurance purposes (£75 a week from April 2002) 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 is being introduced. From 6 April 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 are being
changed to extend the period of
maternity leave and pay, and to increase the rate of maternity pay. Women whose expected week of childbirth begins on or
after 6 April 2003 benefit from the new maternity leave and pay rights. 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)
is being introduced. Eligible employees can take paid time off to
care for their new baby and support the mother. The right is available to employees whose children are
expected to be born, or are born, on or after 6 April 2003. 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 18th birthday, if that is sooner).
Parents
of disabled children are entitled to 18 weeks’ parental leave (previously 13
weeks) up to the child’s 18th 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.
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