Download Who is entitled to take statutory adoption leave?

NATIONAL UNION OF TEACHERS
APRIL 2009
LEAVE AND PAY FOR ADOPTIVE PARENTS
GUIDANCE FOR NUT DIVISIONS
APRIL 2009
This guidance for divisions sets out the rights for qualifying adoptive parents to
statutory adoption leave and pay and statutory paternity leave and pay. The
document also refers to additional statutory and contractual benefits available to
adoptive parents.
Adopting a child
Individuals, married couples, civil partners and couples living as partners in an
enduring family relationship may apply to adopt a child. Qualifying parents will be
able to apply for statutory adoption and paternity leave and pay. These benefits
are not available to parents who are adopting a step child, though step-parents
may be eligible for contractual leave or parental leave.
This guidance has been divided into two sections according to whether the
employee is the main adopter of the child, or the adopter's partner. The
hyperlinks will take you to the appropriate section: The Adopter; The Adopter's
Partner.
Contractual adoption leave and pay arrangements
A number of local authorities and other employers operate contractual adoption
leave and pay arrangements. Some arrangements may be more generous than
the statutory scheme, for example by including the post-natal provisions of the
Burgundy Book maternity scheme.
Where employees have a contractual right to adoption leave and pay as well as
their statutory right, they may take advantage of whichever is more favourable.
Other entitlements
In addition to statutory and/or contractual adoption and paternity leave and pay,
eligible adoptive parents are entitled to parental leave and dependents' leave, the
right to request flexible working, and the right to child care vouchers. The NUT
has issued separate guidance on these individual rights.
THE ADOPTER
Statutory Adoption Leave
Statutory adoption leave is absence from work for the purpose of caring for a
newly placed adoptive child.
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Who is entitled to take statutory adoption leave?
To be entitled to take statutory adoption leave, an employee must:
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have been matched with a child for adoption by an adoption agency;
have notified the adoption agency that he or she agrees that the child should be
placed with him or her on the date of the placement;
have been continuously employed by the same employer for at least 26 weeks by
the time he or she is matched with the child; and
satisfy the notice and evidential requirements.
How much statutory adoption leave can an employee take?
The maximum length of statutory adoption leave available to the adopter is 52
weeks, comprised of ordinary adoption leave of up to 26 weeks and additional
adoption leave of up to 26 weeks.
When can statutory adoption leave start?
Adopters may choose to begin the period of ordinary adoption leave up to 14
days before the placement. Where an adopter has chosen to begin leave on the
date of the placement and he or she is at work on that date, the period of leave
begins on the following day.
What notice and evidence must be given?
An adopter must give notice to the employer of his or her intention to take
statutory adoption leave, no more than 7 days after the date on which he or she is
notified of having been matched with the child, or where this is not possible, as
soon as is reasonably practicable.
The notice must be in writing, if requested by the employer, and must specify:
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that the adopter intends to take adoption leave;
the date the child is expected to be placed with adopter; and
the date the adopter has chosen the period of leave to begin.
Where the employer requests, the adopter must also give the employer
documents from the adoption agency which detail:
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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 adopter.
Can the adopter change the intended start of the statutory adoption leave?
To change their start date adopters must give their employer written notice of the
variation at least 28 days before the expected date of the child's placement or 28
days before the specific predetermined date. If it is not possible for the adopter to
give 28 days' notice, he or she should give notice to the employer as soon as is
reasonably practicable.
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What should the employer do once the adopter has given notice of their
intention to take statutory adoption leave?
Once the employer has received proper notification of the adopter's intended start
date for adoption leave, the employer should within 28 days notify the adopter in
writing of the date on which their leave will end.
When does statutory adoption leave end?
Adoption leave will normally last for 52 weeks. It will be shorter if the adopter
wishes to return to work before their statutory entitlement has ended, or the
placement is disrupted.
Adopters who wish to return to work early must give 8 weeks' notice of their
intended early return.
Teachers who are entitled to the post natal provisions of the Burgundy Book
maternity scheme need not give 8 weeks' notice. They are entitled to give 21
days' notice of their intended early return.
What happens if the placement is disrupted?
The placement is disrupted if the adopter starts leave before the placement of the
child and is given notice that the placement will not be made, or if during the
adoption leave period the child dies or the child is returned to the adoption
agency.
If the placement is disrupted, the adoption leave period will end eight weeks after
the week in which the disruption took place.
How does adoption leave affect a teacher's contractual terms and
conditions?
A teacher's employment contract will continue during ordinary and additional
adoption leave unless it is a fixed term contract which terminates on expiry of the
fixed term during the period of adoption leave, or the contract is terminated by the
employee or the employer.
Service is not broken by additional adoption leave. The period of ordinary
adoption leave counts for assessing payments based on length of service such
as annual increments under the employment contract.
Can a teacher return to the same job on return from adoption leave?
In the majority of cases, a teacher is entitled to return to the same job as if he or
she had not been absent, on the same or improved terms and conditions.
If a redundancy situation has arisen, the teacher is entitled to be offered a
suitable alternative position on terms which are not substantially less favourable.
If a teacher is not permitted to return to the same job, divisions may seek
guidance from the NUT regional office in England or NUT Cymru in Wales.
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What are the arrangements for Keeping In Touch (KIT) during adoption
leave?
Where the expected date of placement for adoption is on or after 1 April 2007,
adopters may undertake up to 10 days' work during their adoption leave without
losing SAP. These days are called Keeping In Touch, or KIT days. All adopters,
whether they take 26, 39 or 52 weeks' adoption leave are entitled to undertake up
to 10 days' work.
Under the KIT arrangements, adopters may work up to 10 days without losing
their SAP. Once the 10 days have been used up, any day or part day worked
under the contract during the maternity pay period will result in the loss of any
SAP for that week.
Under the KIT day scheme, 'work' includes training or other activities undertaken
for the purpose of keeping in touch with the workplace. An adopter who attends
work for three hours' training would use one of his or her KIT days.
The provisions do not give employees an 'entitlement' to work during the adoption
leave period. Similarly, the provisions do not confer a right on the employer to
'require' an employee to work during the adoption leave period.
What are the arrangements for 'reasonable contact' during adoption leave?
The employer or employee may make 'reasonable contact' for the purpose of
keeping in touch, for example to discuss the practicalities of returning to work.
Such contact will not bring the adoption leave period to an end.
How much will a teacher be paid for each KIT day?
Adopters are entitled to contractual pay for the work done. The Government has
chosen to leave arrangements for pay for KIT days to employers and employees.
It is crucial that employers and teachers are absolutely clear about how teachers
will be paid for KIT days and how much teachers will receive each week when a
KIT day is worked.
What if an adopter does not wish to return to work at the end of his or her
adoption leave?
Adopters who do not wish to return to work after their ordinary or additional
adoption leave should give their employer notice in the usual way. Teachers who
are covered by the Burgundy Book should give notice in accordance with section
3 of the Burgundy Book.
What if an adopter is ill at the end of his or her adoption leave?
Adopters, who are unable to work at the end of their adoption leave because of
illness, should follow the normal procedures for sickness absence. Teachers who
are covered by the Burgundy Book should comply with requirements under
section 4 of the Burgundy Book.
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Is there any employment protection for an adopter who wishes to take
statutory adoption leave?
Adopters have the right not to be subjected to a detriment in relation to requesting
or taking adoption leave.
Divisions should seek advice from the NUT regional office in England or NUT
Cymru in Wales if members claim to have been treated unfairly for taking, or
seeking to take, adoption leave.
Statutory Adoption Pay
Who is entitled to Statutory Adoption Pay?
An employee is entitled to Statutory Adoption Pay if he or she satisfies the
following conditions. He or she must:
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be a person with whom the child is, or is expected to be, placed for adoption;
have been employed by the same employer for a continuous period of at least 26
weeks ending with the week in which he or she is notified of having been
matched with the child;
have ceased to work for the employer;
have earned for the period of 8 weeks ending with the week in which he or she is
notified of being matched with the child no less than the lower earnings limit in
force at the end of that week; and
have elected to receive Statutory Adoption Pay.
How do members apply for Statutory Adoption Pay?
To receive Statutory Adoption Pay the adopter must give notice, in writing if the
employer requests, of:
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the date the adopter wishes payment to start;
the expected date of placement of the child; and
the actual date of placement if he or she chose payment to start on the date the
child was placed.
The adopter must also give evidence in the form of documentation issued by the
adoption agency of:
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the name and address of the adoption agency;
the adopter's name and address;
the expected date of placement, or the actual date if the child has already been
placed; and
the date the he or she was notified of having been matched with a child.
What notice must be given?
Adopters must notify their employers of the date they wish their Statutory
Adoption Pay to begin, at least 28 days before that date.
Where an adopter is entitled to both adoption pay and leave, he or she may give
notice of both at the same time provided that notice is given no more than 7 days
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after the date on which he or she was notified of having been matched with the
child and no less than 28 days before he or she wishes payment to begin.
When does Statutory Adoption Pay start?
The adopter may choose for Statutory Adoption Pay to start on the date of the
placement or a specific date up to 14 days before the expected date of the
placement.
When does Statutory Adoption Pay end?
SAP is paid for 39 weeks. It is paid on a weekly basis unless:
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the employee returns to work, except on a KIT day;
the placement is disrupted; or
the adoption pay period began before the child was placed and the placement
does not take place.
How much is Statutory Adoption Pay?
The weekly rate of Statutory Adoption Pay from 5 April 2009 is the lesser of
£123.06 or 90% of the employee's normal weekly earnings.
If the employer has agreed to improved conditions or has extended the post-natal
provisions of the Burgundy Book maternity scheme to adoptive parents, the
employee will also be entitled to contractual adoption pay.
THE ADOPTER'S PARTNER
Statutory Paternity Leave for Adoption
Statutory paternity leave for adoption is absence from work on leave, for the
purpose of caring for a newly placed adoptive child or to support the adopter.
Who is entitled to take paternity leave for adoption?
An employee is entitled to take paternity leave for adoption if he or she:
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is married to or is the partner or civil partner of the adopter;
has, or expects to have, the main responsibility for the upbringing of the child,
apart from any responsibility of the adopter;
has been continuously employed by his or her employer for a period of not less
than 26 weeks ending with the week in which the adopter is notified of having
been matched with the child; and
has complied with the notice and evidential requirements.
How much paternity leave for adoption can be taken?
An eligible employee may choose to take either one week's paternity leave or two
consecutive weeks' paternity leave. Local agreements may provide for longer or
more flexible contractual paternity leave.
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When can paternity leave for adoption be taken?
An employee may take paternity leave within 56 days of the date the child is
placed for adoption.
An employee must give notice of his or her intention to take paternity leave. An
employee may choose to begin his or her period of paternity leave for adoption
on:
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the date on which child is placed with the adopter; or
a day falling a specific number of days after date child is placed; or
a specific predetermined date later than date child is expected to be placed.
Paternity leave will start on the date specified in a valid notice. If the employee
chose to start leave on date of the placement and employee is at work on that
date, leave begins on day after the placement.
What notice must be given before leave can be taken?
An employee must give notice to his or her employer of his or her intention to
take paternity leave for adoption no more than 7 days after the date on which the
adopter is notified of having been matched with the child or, where this is not
possible, as soon as is reasonably practicable.
The notice must be in writing if requested by the employer and must specify:
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the date adopter was notified of having been matched with the child;
the date the child is expected to be placed with adopter;
the length of leave the employee has chosen to take; and
the date the employee has chosen the period of leave to begin.
Where the employer requests, the employee must also give employer his or her
signed declaration that the purpose of absence is to care for a child or to support
the child's adopter and that he or she is the spouse, civil partner or partner of the
adopter and has or expects to have the main responsibility, apart from the
responsibility of the adopter, for the upbringing of the child.
Can an employee change the start date of the paternity leave for adoption?
Employees who wish to change their start date must give their employer at least
28 days' notice of the variation. If it is not possible for employees to give 28 days'
notice, they should give notice as soon as is reasonably practicable. The notice of
variation must be in writing if employers request.
Is an employee required to give notice of the placement?
An employee must give his or her employer notice of the date that the child was
placed as soon as is reasonably practicable after child's placement. The notice
must be in writing if the employer requests.
When does statutory paternity leave for adoption end?
The leave will end after the employee has taken one whole week or two whole
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weeks' leave.
How does paternity leave affect the employment contract?
A teacher's employment contract will continue during statutory paternity adoption
leave unless it is a fixed term contract which terminates at the end of the fixed
term during the period of the leave, or the contract is terminated by the employee
or the employer.
The period of statutory paternity leave counts for assessing payments based on
length of service such as annual increments under the employment contract.
Can a teacher return to the same job on return from statutory paternity
leave?
In the majority of cases, the employee is entitled to return to the same job as if he
or she had not been absent, on the same or improved terms and conditions.
If an employee returns to work from statutory paternity leave which immediately
followed a period of additional maternity leave or additional adoption leave or a
period of parental leave of more than four weeks, he or she is entitled to return to
the job in which he or she was employed before the absence, unless it is not
reasonably practicable in which case the employer should offer the employee a
suitable alternative on terms and conditions which are no less favourable than
their original job.
What if an employee is ill at the end of their statutory paternity leave?
If an employee cannot return to work at the end of statutory paternity leave
because of illness, he or she should follow the normal procedures for sickness
absence. Teachers who are covered by the Burgundy Book should comply with
requirements under section 4 of the Burgundy Book.
What if an employee wishes to take statutory paternity leave and parental
leave?
If an employee wishes to take parental leave immediately before or after paternity
leave he or she is obliged to give the necessary notice for both parental leave
and paternity leave.
Is there any employment protection for an employee who wishes to take
statutory paternity leave for adoption?
Employees have the right not to be subjected to a detriment in relation to
requesting or taking paternity leave.
Divisions should seek guidance from the NUT regional office in England or NUT
Cymru in Wales if members claim to have been treated unfairly for taking, or
seeking to take, paternity leave.
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Statutory Paternity Pay For Adoption
What is Statutory Paternity Pay for adoption?
Statutory Paternity Pay for adoption is a payment made by employers to eligible
employees for one or two weeks.
Who is entitled to Statutory Adoption Pay for adoption?
An employee is entitled to Statutory Paternity Pay for adoption if he or she:
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is married to, or is the partner or civil partner of the adopter;
has, or expects to have, the main responsibility for the upbringing of the child,
apart from any responsibility of the adopter;
has 26 weeks' continuous employment at the time of the match for adoption;
earned for the period of 8 weeks ending with the week in which the adopter is
notified of having been matched with the child no less than the lower earnings
limit in force at the end of that week;
has been in employed with the same employer for a continuous period beginning
with end of the week in which the adopter is notified of having been matched with
the child and ending with the day the child is placed for adoption; and
has elected to receive Statutory Paternity Pay.
How do members apply for Statutory Paternity Pay for adoption?
An employee should complete form 'SC4 – Becoming an Adoptive Parent' which
gives notice of intention to take paternity leave for adoption land serves as an
application form for Statutory Paternity Pay.
An applicant for Statutory Paternity Pay must give the employer notice of the date
from which he or she wishes the payment to start at least 28 days before that
date or if that is not possible, as soon as is reasonably practicable.
Where an employee is entitled to both paternity pay and leave, he or she may
give notice at the same time so long as he or she gives notice no more than 7
days after the date on which the adopter was notified of having been matched
with the child and no less than 28 days before he or she wishes payment to
begin.
How much is Statutory Paternity Pay for the adopter's partner?
The weekly rate of Statutory Paternity Pay from 5 April 2009 is the lesser of
£123.06 or 90% of the employee's normal weekly earnings.
Statutory Paternity Pay is not payable by an employer for a week if the employee
works for that employer or another employer during any part of that week.
Where on Hearth is it?
For guidance and resources on employment rights for adoptive parents, go to:
Hearth > Advice and Guidance > Employment > Contracts > Contractual Terms
> Adoption leave/pay
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