An adopter is the person who has been matched with a child for adoption or, where two people have been matched jointly, whichever of them has elected to be the child’s adopter for the purposes of the regulations. Where a couple adopt jointly only one member of that couple can claim ordinary adoption leave. However, the other member of the couple may be entitled to paternity leave and pay.
Where more than one child is being adopted as part of the same arrangement, the employee is only entitled to one period of ordinary adoption leave in respect of each placement.
New adoption rights also apply to children adopted from overseas. This is covered in the Paternity and Adoption Leave (Adoptions from Overseas) Regulations 2003.
Ordinary adoption leave begins on the date chosen by the employee and lasts for 26 weeks. An employee is entitled to choose to begin the ordinary adoption leave on the day on which the child is placed with him or her for adoption or a pre-determined date which is no more than 14 days before the child is expected to be placed and no later than the day of the placement.
There are two situations in which the leave may end before the 26 weeks and these are where the placement has been disrupted or where the employee is dismissed while he or she is absent on the ordinary adoption leave.
An employee must give the employer notice of his or her intention to take ordinary adoption leave specifying the date on which the child is expected to be placed with him or her for adoption and the date on which the employee has chosen his or her leave period to begin. The notice must be in writing, if the employer so requests, and must be given to the employer within seven days of the date on which the employee is notified of having been matched with the child for adoption, or as soon as is reasonably practicable.
The employer may require evidence relating to the adoption. This should be in the form of one or more documents issued by the adoption agency that matches the employee with the child and must contain the name and address of the agency, the name and date of birth of the child, the date on which the employee was notified that he or she had been matched with the child and the date on which the agency expects to place the child with the employee.
The notice may be changed by the employee provided that he or she gives the employer proper notice. Where the employee has chosen to begin the period of leave on the date on which the child is placed with him or her for adoption notice should be given 28 days before the placement date specified in the employee’s original notice. Where the employee has chosen to begin the period of leave on a pre-determined date 28 days’ notice has to be given before that date.
This notice must also be given in writing and if it is not reasonably practicable to give 28 days’ notice, notice should be given as soon as it reasonably practicable. On receipt of the notice the employer must notify the employee within 28 days of the date on which the employee’s full entitlement to leave ends, taking into account the additional adoption leave to which the employee will be entitled and the date the employee must return to work.
An employee on ordinary adoption leave is entitled to the benefit of all the terms and conditions of employment that would have applied if he or she had not been absent, save as regards salary.
Any employee who has taken ordinary adoption leave will be entitled to additional adoption leave of a further 26 weeks unless the placement has ended prematurely.
The contract continues during additional adoption leave.
All other terms and conditions of employment are in effect suspended during the additional adoption leave period unless the contract provides otherwise. The terms and conditions do not include terms and conditions about remuneration.
Employees whose child was placed after 5 October 2008 are entitled to the same benefits during the additional adoption leave period as during the ordinary adoption leave period. The terms and conditions do not include terms and conditions about remuneration.
The provisions within the adoption leave regulations are identical to those that apply during additional maternity leave. The additional adoption leave period will be unpaid unless the contract of employment states otherwise.
An employee who returns to work after ordinary adoption leave, which was an isolated period of leave or the last of two or more consecutive periods of statutory leave, but which did not include any period of additional maternity leave or additional adoption leave or a period of parental leave of more than four weeks, will be entitled to return to the job in which he or she was employed before the absence.
An employee returning after a period of additional adoption leave will be entitled to return to the job in which he or she was employed before the leave or, if it is not practicable for the employer to allow the employee to return to that job, to another job which is both suitable for the employee and appropriate for him or her to do in the circumstances.
If an employee wishes to return to work before the end of the ordinary or additional adoption leave period, they are required to give their employer 28 days’ notice of the date of return unless the employer has failed to notify them of their return date within 28 days of their notification that they are taking leave. Since 1 April 2007, the notice requirement is eight weeks.
Since 1 April 2007, the employer may make contact with the employee (and vice versa) while she is on adoption leave, as long as the amount and type of contact is not unreasonable, to discuss a range of issues, eg her plans for returning to work, to keep her informed of important developments in the workplace etc.
The employee should be informed of any relevant promotion opportunities or job vacancies that arise during adoption leave. The employee can do up to 10 days’ work under her contract of employment, as long as both she and her employer have agreed for this to happen, and agreed on what work is to be done and how much she will be paid for it. These are known as keeping in touch days. The employee will continue to receive statutory adoption pay for the week in which a keeping in touch day is worked. The employee cannot be forced to work during her adoption leave. This will not bring the adoption leave period to an end and will not extend the duration of the adoption leave period.
Employees have the right not to be subjected to any detriment or any act, or any deliberate failure to act, of their employer for a reason which relates to adoption leave. Similarly, they are protected against dismissal for reasons connected with adoption leave.
For hospital doctors employed under national terms and conditions of service or other doctors who have contracts of employment which make reference to national terms and conditions of service, Temporary Appendix VI(vi) and Schedule 29 for consultants employed under the new Consultant Terms and Conditions of Service, ’Balancing Work and Personal Life’, contains guidance on adoption leave. There is provision for adoption leave and pay to be available to those employees wishing to adopt a child and who have primary care responsibilities for that child.
The leave should cover official meetings in the adoption process as well as time off after the adoption itself. Each trust should have an adoption policy. This should include time off after the adoption, which should cover circumstances where the child is initially unknown to the adoptive parents. If there is an established relationship with the child, such as fostering prior to adoption, time off for official meetings only should be considered.
Where the child is below the age of 18 adoption leave and pay will be in line with the maternity leave and pay provisions which are set out in temporary appendix VI(i) of the Terms and Conditions of Service for Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales) and the new temporary schedule 24 to the Terms and Conditions - Consultants (2003), as explained above. If the same employer employs both parents the period of leave and pay may be shared. This guidance replaces Section 7 of the General Whitley Council Conditions of Service.
Read more about rights to parental leave for adoptive parents
Get information on statutory pay for new adoptive parents