The procedure should normally be referred to in your contract of employment or staff handbook. You must read your employer's procedure where it is available.

Below we have outlined your rights and responsibilities, and those of your employer where you are adopting children. These rights and obligations do not apply if you are an agency worker or a self-employed consultant.

There are three categories of adoption right:

• adoption leave
• Statutory Adoption Pay (SAP)
• protection against unfair treatment or dismissal

Entitlement to adoption leave

Subject to the requirements set out below, you are entitled to up to 26 weeks' ordinary adoption leave (OAL) followed immediately by up to 26 weeks' additional adoption leave (AAL) – a total of up to 52 weeks' leave if you are adopting a child through a UK or overseas adoption agency. It is not available if there is no agency involved so for example, if you are adopting a step-child.

In order to qualify for ordinary adoption leave you must be:

• the child's adopter
• have been continuously employed for at least 26 weeks ending with the week in which you were notified of having been matched with the child
• inform your employer no more than seven days after the date on which you are notified as having been matched with the child for adoption or as soon as is reasonably practicable of the date on which the child is expected to be placed with you for adoption
• and the date that you wish to start your adoption leave; and 
• confirm your spouse or partner will not be taking adoption leave with their employer

At least 28 days before your intended start date (or if this is not possible, as soon as you can), you must also provide your employer with a Matching Certificate from the adoption agency confirming:

• the agency's name and address
• the name and date of birth of the child
• the date you were notified of the match
• the Expected Date of Placement (EDP)

You must also provide written confirmation that you intend to take SAP and not Statutory Paternity Pay (SPP).

If you are adopting a child from overseas this policy applies with the following modifications:

• you must have received notification that the adoption has been approved by the relevant UK authority (Official Notification).
• you must give your empoyer notice in writing of: your intention to take adoption leave, the date you received Official Notification, and the date the child is expected to arrive in Great Britain.

Start date of adoption leave

You may start your ordinary adoption leave either on the date which the child is placed for adoption with you or a pre-determined date which is no earlier than 14 days before the date on which the child is expected to be placed with you.

Once you have notified your employer of the date that you intend the OAL to start you may subsequently vary that date provided that you notify your employer of the variation at least 28 days before the date that the child was originally to be placed with you or 28 days before the date the leave was originally to start, whichever is sooner.

Upon receipt of your notification, your employer will confirm in writing the start and finish dates of your adoption leave, both ordinary and additional.  Such confirmation will be provided within 28 days of the date of receipt of notification from you.

Exceptions

Disrupted placement in the course of adoption leave

If you begin a period of adoption leave before the child is placed with you and are subsequently notified that the placement will not be made, then your adoption leave period ends eight weeks after the end of the week you were informed that the placement will not be made, irrespective of whether or not your ordinary adoption leave period has ended during the eight week period. 

In this event, you must inform your employer of the change in circumstance as soon as is reasonably practicable.

Return of child/death of child in the course of adoption leave

If, during your period of adoption leave the child dies or the child is returned to the adoption agency then your adoption leave period ends eight weeks after the end of the week that the child dies or was returned to the adoption agency, irrespective of whether or not your ordinary adoption leave period has ended during the eight week period.

If the eight week period ends after your additional adoption leave has come to an end then your additional adoption leave period will end on the expiry of the 26 week additional adoption leave period.

In the event of the above, you must inform your employer of the change in circumstance as soon as is reasonably practicable.

Dismissal or resignation before the intended start date

If you resign or are dismissed before the date notified, or before you have notified a start date, you will lose your right to adoption leave.

Dismissal during adoption leave

If you are dismissed after the commencement of an ordinary or additional adoption leave period but before that period would end, the period ends at the time of the dismissal.

Terms and conditions during adoption leave

Your contract of employment will continue throughout your adoption leave with the exception of your remuneration. You will continue to receive all your contractual benefits such as statutory holiday accrual, car allowance and professional subscriptions.

Holidays accrued during your adoption leave must normally be taken in the current holiday year.

You are not normally entitled to participate in any other business during your adoption leave and must continue to observe the relevant terms and conditions of your contract of employment, in particular, those relating to confidentiality.

Communication during adoption leave

Your employer must maintain communication with you if you are on adoption leave and your employer should agree with you, before you start your adoption leave, how much contact you wish to have with your employer whilst you are on adoption leave.

You should keep in touch with your employer during your adoption leave and to respond promptly to all their correspondence, such as any request for confirmation of your adopted child's placement date and your intentions regarding your return to work.

Additional Adoption Leave

You are entitled to AAL if you are entitled to OAL. Additional adoption leave period commences on the day after the last day of your ordinary adoption leave period. The maximum amount of adoption leave you may take is therefore 52 weeks.

Keeping in Touch days

You may work for your employer during your adoption leave for up to ten days and these are known as 'keeping in touch' days or KIT days. Any work done under your contract on any day will count as a whole KIT day. Therefore, if you attend work for one hour for a training session you will have used one of your KIT days. There will be no restrictions on when KIT days can be used for SAP.

As KIT days are worked by agreement an amount can be agreed in excess of SAP rate to reflect the additional work done. It is therefore very important that both you and your employer are clear how contractual payment for KIT days will work and how much you will receive in respect of that week before you work.

Statutory Adoption Pay

SAP is payable for up to 39 weeks. It stops being payable if you return to work sooner or if the placement is disrupted. SAP is paid whether or not you intend to return to work.

You are entitled to a maximum 39 consecutive weeks' SAP, where you have selected to take AAL, if you have worked for your employer for a continuous period of at least 26 weeks ending with the week in which you were notified that you have been matched with a child for adoption and you satisfy the lower earnings limit for National Insurance contributions. Your employer will be able to advise you if you are eligible for SAP or not.

The first six weeks of SAP is paid at 90% of your average weekly earnings or at a flat rate if this is more, ('earnings related rate'). The remaining 33 weeks are paid at whichever is the lower of the earnings related rate or the SAP flat rate per week.

Your entitlement to SAP is not affected by the placement, or expected placement, of more than one child as part of the same arrangement.

Returning to work after adoption leave

If you have not been in touch to notify of your intended return to work date, your employer must write to you eight weeks before the end of your AAL[1] requesting this information.

If you wish to change your return date to an earlier date before the end of your AAL you must give your employer at least eight weeks notice of the date on which you intend to return. If not, your employer may postpone your return by up to eight weeks but not beyond the end of your AAL. Notices should normally be in writing.

If you return to work at the end of your OAL you are entitled to return to the same job on the same terms and conditions.  If you return to work at the end of your AAL you are entitled to return to the same job on the same terms and conditions or, if this is not reasonably practicable, to another job which is both suitable and appropriate for you to do in the circumstances, and all terms and conditions will be the same, or no less favourable than your previous job.

If you do not wish to return to your full contractual hours, you must discuss the matter with your employer at least eight weeks before your return to work date. They should endeavour to accommodate your request for part-time/flexible working subject to the business requirements. There should be relevant information in your employer's flexible working policy.

If you cannot return to work at the end of your adoption leave due to sickness, you must consider your employer's sickness absence policy as this will normally apply.

The grievance procedure

You must not be unfairly treated on grounds of adoption issues. Any concerns you may have should be treated seriously and sensitively if you approach your employer. They must not tolerate discrimination or harassment of any staff member on the grounds of them adopting a child or taking adoption leave. Any grievance with regard to your adoption leave or pay should be made formally through your employer's formal grievance procedure if you wish. 

[1] The Maternity and Parental Leave etc and the Paternity and Adoption Leave (amendment) Regulations 2006 refer to this notice specifically with respect to AML and AAL however on researching commentary on this, the majority view is firmly that the right to return does also apply during OML and OAL.  We have agreed to keep the wording which follows the legislation but not to expressly confirm that the right does not apply during OML and AAL.

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