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Stewards - adoption leave and pay

Stewards - adoption leave and pay

Stewards - adoption leave and pay

The AfC NHS Terms and Conditions of Service Handbook makes clear that there will be entitlement to paid occupational adoption leave for employees wishing to adopt a child who is newly-placed for adoption, and that this will be available to people wishing to adopt a child who have primary carer responsibilities for that child. 

Where the child is below the age of 18, adoption leave and pay will be in line with the maternity leave and pay provisions set out in Section 15 of the Handbook

To be eligible for occupational adoption pay, one must have had twelve months' continuous NHS service ending with the week in which they are notified of being matched with the child for adoption. This will cover the circumstances where employees are newly matched with the child by an adoption agency. 

Also, if there is an established relationship with the child, such as fostering prior to the adoption, or when a step-parent is adopting a partner's children, there is scope for local arrangements on the amount of leave and pay in addition to time off for official meetings. 

If the same employer employs both parents, the period of leave and pay may be shared. One parent should be identified as the primary carer and be entitled to the majority of the leave. The partner of the primary carer is entitled to occupational paternity leave and pay. 

Reasonable time off to attend official meetings in the adoption process should also be given. 

Employees with less service will be entitled to unpaid leave, subject to local agreement.

 

What does the law say?

Are you adopting a child and in work?

Regulations apply if you are notified of being matched with a child on or after 6th April 2003, or where the adoption takes place on or after 6th April 2003. These regulations only apply to those employees who are adopting a child in the UK through a UK adoption agency. If you are looking to adopt a child from abroad you should seek separate legal advice and information.

Please note that the rights for adopting parents can be complicated and everyone's situation is different, so you may need to seek further advice The statement of rights set out below is not a comprehensive statement of the law; it simply provides  information on adoption leave and pay, outlining the rights which apply to people who are adopting as individuals or as couples.

As a working adoptive parent you may be entitled to:

  • 26 weeks paid ordinary adoption leave around the time you adopt

  • An additional 26 weeks unpaid adoption leave after that

You have basic (sometimes called statutory) rights that employers must provide for new adoptive parents who work for them. Your individual employer may offer better rights than the legal minimum outlined below, and you will need to check with them to find out your entitlement with your current employer.

Ordinary Adoption Leave (OAL) 

You are entitled to OAL if you: 

  • Are the person adopting the child (if you are in a couple, only one parent can take ordinary and additional adoption leave);

  • Have been continuously employed for 26 weeks or more by the same employer in the week that you are notified that you have been matched with a child;

  • Have notified the adoption agency that you agree to the placement of the child with you and you have agreed the date of the placement.

You must give your employer notice of your intention to take adoption leave within seven days of being notified by the adoption agency that a child will be placed in you care for adoption. You are entitled to take 26 weeks of ordinary adoption leave. This leave must begin on the date that you have specified in notice to your employer; the notice can be verbal or given in writing, but the employer can request that it is given in writing.

Your leave can start on:

  • The day the child is expected to be placed with you; or

  • A specific number of days after the child has been placed with you; or

  • On a pre-determined date.

You are allowed to change your mind about the date you begin your leave period. In these circumstances your leave will begin on the date that you specified in the final notice you gave your employer. If you find that you are at work on the day you specified your leave to begin, then your ordinary adoption leave period will begin on the day after that.

Varying the start date of ordinary adoption leave

Once you have given notice that you intend to take a period of ordinary adoption leave you can subsequently vary the date on which that the leave will begin,  providing you give your employer 28 days' notice of this variation. Your employer can request that you give this change of date in writing.

If it is not reasonably practicable to give notice 28 days in advance, then you must give notice to your employer as soon as you can (as soon as is 'reasonably practicable').

 

Additional Adoption Leave (AAL)

You are entitled to take additional adoption leave if:

  • You are the person with whom the child was placed for adoption (if you are in a couple, only one parent can take additional adoption leave) and you took ordinary adoption leave in respect of this child; and

  • The ordinary adoption leave ran its full course and was not ended prematurely.

Your additional adoption leave will start on the day after your ordinary adoption leave period ends, and will run for 26 weeks; unless your contract states otherwise, this is unpaid leave. Your employer is responsible for giving you notice of when your additional adoption leave will end. Your employer must notify you of this end date within 28 days of your giving them notice of when your ordinary adoption leave period will start.

Notice requirements

You have to give notice of your intention to take ordinary adoption leave, specifying:

  • The date on which the child is expected to be placed with you for adoption; and

  • The date on which you have chosen your ordinary adoption leave period to begin.

You must give this notice to your employer within seven days of being notified by the adoption agency that you have been matched with a child. If you find that you cannot do this, you must give notice as soon as you can (as soon as is 'reasonably practicable').

If an employer requests it, you must provide them with evidence of the adoption. This should be in the form of documents issued by the adoption agency responsible for your placement (sometimes called a matching certificate). This documentary evidence must show:

  • The name and address of the agency; and

  • The name and date of birth of the child; and

  • The date that you were notified you had been matched with the child; and

  • The date that the agency expects the child to be placed in your care.

It is the responsibility of your employer to give you notice of any additional adoption leave to which you are entitled. Your employer must give you this information within 28 days of being given notice of the date on which you intend your ordinary adoption leave to begin.

If your employer fails to do this, and you return to work after your additional adoption leave period earlier or later than your employer expected, they cannot penalise you. However it is always advisable to agree these key dates in writing with your employer before your leave period begins, to ensure that confusion does not arise.

 

Your job while you are on leave

Ordinary adoption leave

The contract of employment continues throughout ordinary adoption leave, unless either the employer or the employee expressly ends it or it expires. When you take ordinary adoption leave, you are entitled to benefit from all the terms and conditions, such as pensions or holidays, which you would have received if you had not been on leave. These include 'perks' such as health club membership and use of a company car or mobile phone (unless these are provided for business use only).

You are not entitled to receive 'remuneration', i.e. wages and salary, while on ordinary adoption leave. If you meet the qualifying period, you are entitled to receive Statutory Adoption Pay.

Additional Adoption Leave

During a period of additional adoption leave you are still an employee, but your employer will not be obliged to pay your wages for any of that time. The only other contractual rights and duties which continue automatically are:

  • The notice periods for terminating a contract: you or your employer should still give this period of notice if either of you wants to end your job contract;

  • Your right to receive redundancy payment/compensation;

  • Disciplinary or grievance procedures; terms on not working for competing organisations or disclosing confidential information about your employer's business.

Unlike the period of ordinary adoption leave, your employer does not have to count additional adoption leave when assessing your seniority, your pension rights or any payments that are linked to your length of service (unless your employment contract states otherwise).

For these purposes, your employment before the additional adoption leave started (even if you were on ordinary adoption leave at the time) will be treated as continuous to your employment when you return from additional adoption leave.

Notice of your intention to return

You do not need to give any notice that you are returning to work at the end of your adoption leave, and you can simply turn up at work on the day that you are due back. However, you might find it helpful to contact your employer just to make sure that they know you are coming back!

If you take ordinary adoption leave:

  • You must return to work on the day after the last day of your 26-week leave period;

  • You must give your employer 28 days' notice of your intention to return if you want to return earlier than the end of your 26 weeks' ordinary adoption leave period.

If you fail to give 28 days' notice, your employer can delay your return for 28 days and, if you work in this period for your employer, they can refuse to pay you.

If you take both ordinary and additional adoption leave:

  • You must return to work on the day after the last day of your 52 weeks' adoption leave period;

  • If you want to return to work earlier than the end of the full 52 weeks of leave that you are entitled to take, then you must give your employer 28 days' notice of your intention to return (this is the case even if you decide to take full OAL but not AAL as you will be returning early).

Notice from your employer of the date your adoption leave ends

Once you have notified your employer of your intention to take adoption leave, your employer has 28 days in which to tell you the date on which your leave will end. If your employer fails to do this, the law says that they have to give you this notice at least 28 days before the date on which they are expecting your additional adoption leave to end. If they fail to comply with either of these notice periods, and you return to work on the day on which you thought you were supposed to return (a day that you reasonably thought to be the day after the last day of your adoption leave), your employer cannot turn you away or refuse to pay you for any work that you do.

You are protected under the law if:

  • Your employer fails to give you notice of your return date and then attempts to dismiss or discipline you when you fail to return on that date;

  • Your employer gives you less than 28 days notice of the date that your additional adoption leave period would end, and it was not reasonably practicable for you to return to work on that date.

 

Your job when you return

After returning from ordinary adoption leave, you have the right to go back to the same job that you were doing before you went on leave.

After returning from additional adoption leave, you also have the right to return to the same job unless your employer can demonstrate that it is not reasonably practicable to have kept that job open for you. In this case you are still entitled to an alternative job that is both suitable and appropriate for you.

Requesting the right to return to work flexibly

Many new parents would like to return to work on a part-time basis, and some good employers are happy to negotiate such new terms with their employees. Under a new law, employees who have children under six, or disabled children under 18, have the right to request to work flexibly including part-time, and to have that request considered seriously by their employer.

See later in this handbook for more details on this important new right.

 

Adoption Pay

Statutory Adoption Pay

These regulations apply to those employees who are notified of being matched with a child on or after 6th April 2003 or who have a child placed with them for adoption on or after this date. Statutory Adoption Pay (SAP) is available to you while you are on adoption leave.

If you are part of a couple who is adopting, then your partner may be entitled to claim paid paternity leave for up to two weeks around the time that the placement of the child in your care is made.

You must give your employer certain evidence of the adoption in order to qualify for SAP. This can come in the form of a 'matching certificate', which the adoption agency will give you. This certificate should state:

  • Your name and address; and

  • The name and address of the adoption agency; and

  • The date that the child will be placed for adoption with you, or if the placement has already been made, the date that the placement was made on; and

  • The date that you were told by the adoption agency that the child would be placed in your care.

You must give your employer the information listed above at least 28 days before the date that you have chosen for your pay period to start, or as soon as reasonably practicable. You must also give your employer a signed declaration that you have chosen to receive Statutory Adoption Pay rather than Statutory Paternity Pay; you cannot be in receipt of both.

The rules governing SAP are complicated, and you need to understand one legal term, which is your 'qualifying week'. This is the week beginning with the Sunday that you received notification of having been matched with the child and ends on the following Saturday. You also need to satisfy certain conditions in order to receive SAP:

  • You must have been notified of being matched with a child who will be placed with you by a UK adoption agency; and

  • You must have been continuously employed by the same employer for 26 weeks ending with the qualifying week – there may be some breaks in your employment that should not stop you from qualifying for adoption leave or pay; and

  • Your gross average earnings per week must be at, or above, the Lower Earnings Limit (LEL)* for the eight weeks up to the end of your qualifying week.

Your employer will tell you whether you qualify for SAP, but if they state that you do not and you do not agree with them, you have the right to challenge their decision. You should talk to your employer to start with. If you still do not agree with the employer's decision, you should contact the Inland Revenue, who will be able to make a formal decision.

If you are entitled to receive adoption pay, you can choose when it will start. You can choose that it starts on:

  • The date the child is placed with you for adoption, or if you are at work on that day, the following day; or

  • A pre-determined date that you have chosen and which falls no more than 14 days before the child's placement with you is expected to take place, and which starts no later than the date that the child is placed with you.

You can be paid SAP for up to 26 weeks, and you will receive either £100 per week, or 90% of your average earnings if they are less than £100 per week.

You are entitled to receive adoption pay continuously for a maximum of 26 weeks. If you are paid weekly, then your adoption pay will be paid to you weekly. If you are usually paid your wages monthly, then your SAP will be paid monthly.

You cannot be paid SAP for any week in which you do any work for the employer paying you SAP. Your SAP will also be stopped if, after your child is placed, you start working for a new employer who did not employ you in your qualifying week.

If you leave your job after the qualifying week, for whatever reason (including dismissal), you will still be entitled to SAP, providing you do not start working for another employer. However, some additional rules apply if you are dismissed, and you should check the related links and the guidelines below.