As a matter of law employers must give employees employment contracts which cover the key terms of the employment relationship. As a matter of good practice, and often a resource that can save a dispute from arising or provide the best framework for resolving a dispute, are the non-contractual policies and procedures that can be included in a staff handbook. This can sit alongside contracts of employment to set out how employees are expected to act and how the employer will deal with certain situations.
The right to take Adoption Leave was originally introduced in 2001. It gives all employees who’ve had a child placed with them for adoption by a UK or overseas adoption agency, the right to take leave. The right starts from the day one of employment, but it only applies if the adoption is completed through an adoption agency, so private adoptions aren’t included. In 2015 the right was extended to include foster parents under a fostering for adoption arrangement, and couples who have a child through a surrogate mother (provided at least one of the couple is the child’s biological parent).
Where an employee adopts a child they can take up to 52 weeks’ Adoption Leave. The Adoption Leave regime is similar to the Maternity Leave regime in that the first 26 weeks is ordinary adoption leave and the next 26 weeks is additional adoption leave.
To take Adoption Leave an employee must notify their employer that they’ve been matched with a child, the date on which the child is expected to be placed with them and the date they’ve chosen to start their leave. There’s a very short timeframe for the employee to do this as they have to notify them no more than seven days after the date they’ve been told that they’ve been matched with a child. As far as starting their leave is concerned, the employee can choose to start it either on the date on which the child is placed with them, or a specific date that’s no more than 14 days after that date.
During the first 26 weeks of leave, all of an employee’s terms and conditions continue to apply, except those relating to pay and they’ve a right to return to the same job they had before their leave, and on the same terms and conditions. During the next 26 weeks, the employee’s contract of employment still remains in place, but the terms and conditions do not continue to apply. The employee can also return to the same job they had before they took leave, unless it’s not reasonably practicable for them to return to their old job. So, if for example, the way the employer does business changes during the leave period and they no longer need the employee’s role, this it wouldn’t be reasonably practicable for them to return to their old job. In that situation they’ve a right to be offered another job which is both suitable for them and appropriate for them to do in the circumstances.
Although employees aren’t entitled to be paid during Adoption Leave, they may be entitled to Statutory Adoption Pay. To qualify for this, as well as having a child paced with them, they must (1) have worked for their employer for at least 26 weeks by the end of the week in which they’re notified that they’ve been matched and (2) earn a minimum of the lower earnings limit for national insurance purposes in place at the time. If the employee does qualify then Statutory Adoption Pay is paid for up to 39 weeks, with the first six weeks being paid at 90% of the employee’s normal weekly earnings, and the rest being paid at the prescribed rate, which changes each year.
Of course, an employer can always agree to give more time off or pay more than the minimum pay if they wish. They can also enhance the statutory scheme further by being flexible on start and finish dates or by offering a return-to-work bonus.
We’ve prepared a draft policy that reflects employees’ statutory rights to adoption leave and pay and you can download it by clicking here.
This article and the policy are provided for general information purposes only and you should take specialist advice in relation to specific circumstances. Whilst we endeavour to ensure that what we say is correct, no warranty, express or implied, is given as to its accuracy, and Atkins Dellow LLP does not accept any liability for error or omission.