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Withdrawing job offers where checks are not satisfactory
In this guide:
- Pre-employment checks
- Advantages of pre-employment checks
- Pre-employment checks: identity checks
- Pre-employment checks: checking references
- Pre-employment checks: checking qualifications
- Pre-employment checks: health checks
- Pre-employment checks: applying for a criminal records check
- Pre-employment checks: ensuring candidates are eligible to work in the UK
- Withdrawing job offers where checks are not satisfactory
- Pre-employment checks: data protection issues
Advantages of pre-employment checks
Making pre-employment checks to comply with the law.
Pre-employment checks are an important part of the recruitment process.
They help you to:
- comply with the law by ensuring the employee has permission to work - and remain - in the UK and has not been barred from carrying out the job - eg for roles working with vulnerable groups or holding the position of director
- check that the potential employee is suitably qualified or skilled for the job
- assess whether the potential employee is suitable for the job - eg for roles working with vulnerable groups or security roles
- check that the employee is able to carry out the job - though you must ensure you do not discriminate in breach of the Disability Discrimination Act 1995
Types of checks
There are a range of checks you can carry out, some of which are compulsory and others which may be desirable. These include:
- identity checks - see pre-employment checks: identity checks
- AccessNI disclosures - see pre-employment checks: applying for a criminal records check
- evidence of the right to work and remain in the UK - pre-employment checks: ensuring candidates are eligible to work in the UK
- references - see pre-employment checks: checking references
- qualifications - see pre-employment checks: checking qualifications
- health - see pre-employment checks: health checks
You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job. For more guidance, see how to prevent discrimination and value diversity.
You can make any job offer conditional on the outcome of pre-employment checks.
A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met. See withdrawing job offers where checks are not satisfactory.
You should carry out your checks as quickly as possible once a conditional offer has been made.
Protective security guidance
The National Protective Security Authority (NPSA) provides protective security advice. This is for companies and organisations that deliver the UK's essential services.
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Pre-employment checks: identity checks
Why you should check a candidate's identity and how you can go about it.
The first check you should carry out is to confirm the identity of the candidate and establish that their identity is genuine.
You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.
How to check a person's identity
You can check a person's identity by:
- requesting original copies of documents - such as passports, birth certificates, and driving licences
- asking for copies of documents that confirm the person lives where they claim they do - eg provide a recent bank statement or utility bill with their name and address on it
- requesting a Certificate of Registration, or a Biometric Residence Permit, and/or immigration documents where relevant
- using a commercial online database checking service
Whilst these checks can prove that an identity exists, they cannot prove that the identity rightfully belongs to the person using it. You should back up any electronic check by obtaining original documents to support the claim.
Job offer templates from Acas including a pre-employment checklist template.
The HM Passport Office has introduced a number of measures to help employers check for identity fraud.
Read more on the HM Passport Office's responsibilities and priorities.
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Pre-employment checks: checking references
How and when you should check references.
Although not compulsory, it is advisable to check a potential employee's references.
You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you should seek their consent before any referees are contacted.
There is no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority. The easiest way to obtain references is in writing.
References should give facts such as start and end dates, job title, salary, and sickness absences (excluding any absence related to a disability or parental leave).
You may wish to follow up on the information disclosed by having an informal conversation with the author of the reference, or the previous employer. Asking specific questions can disclose additional information, for example, details on the employee's performance, integrity, relevant personal information, and reasons for leaving. However, caution should be taken as to how any additional information is interpreted. After an informal conversation, good practice suggests:
- Any information provided should not be used as a substitute for you making your own judgement about employment.
- The information should be weighed against all evidence received during the recruitment process, making a balanced decision that takes into account all available information.
- Consideration as to the context and circumstances of the information provided, should be carried out as circumstances can change. It may be appropriate to involve the potential employee in this consideration.
Are references confidential?
Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them which has been given in confidence. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.
Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.
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Pre-employment checks: checking qualifications
How and when you should check qualifications as part of your pre-employment checks.
As well as looking at references, you should also check the candidate's qualifications, especially when the qualification is essential to the position you want to fill. In some professions, candidates must be in possession of specific qualifications before they can practice.
You can check qualifications by asking to see the candidate's certificates. Alternatively, you can check with the awarding bodies or use one of the checking services.
The Council for Curriculum Examinations & Assessment (CCEA) has details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on. Read CCEA guidance on post-16 qualifications.
UK ENIC is the UK national agency for international qualifications and skills and can help you compare overseas qualifications with UK equivalents. Compare overseas academic qualifications (registration required).
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Pre-employment checks: health checks
Anti-discrimination and data protection considerations when asking candidates to complete a health check.
You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow up - eg by a medical examination.
Questions about disability and health during the recruitment process
You should take great care when asking about a job candidate's disability or health concerns. You should ensure that you seek this information for the right reasons and not in order to discriminate against disabled people.
The Equality Commission suggests giving job candidates the opportunity on an application form, or on a monitoring form, to indicate any relevant effects of a disability and to suggest any reasonable adjustments which may help them overcome any disadvantage in their potential workplace.
You have an obligation, under the Disability Discrimination Act, to make reasonable adjustments for disabled employees or applicants at all stages of the recruitment, selection and employment process.
Read Equality Commission guidance on hiring new staff.
Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate's response could lead an industrial tribunal to conclude that you have carried out a discriminatory act.
When to carry out pre-employment health checks
You should only complete pre-employment health checks:
- once you have offered the job to a particular person
- where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job
- where testing is needed to meet any legal requirement - eg eye tests for commercial vehicle drivers
- when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act, regardless of whether it is in paper or electronic form
The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.
If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.
You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. For further guidance, see how to prevent discrimination and value diversity.
You may be required to pay a fee for a medical report from a candidate's GP. The candidate must give you their written consent before you request a medical report.
Candidates have the right to see the report and can request that it is amended or withheld from you. Even without the candidate seeing the report, the doctor must keep it for 21 days before sending it to the employer.
Alternatively, an employer may refer a prospective employee to occupational health. The employer must seek the candidate's consent before referral and the employer should pay for the referral.
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Pre-employment checks: applying for a criminal records check
How and when to request an AccessNI check, the application process, and how to use the information provided.
You can apply for a criminal records check for the potential applicant from AccessNI. This is usually required when people are working regularly with children or vulnerable adults or, for example, as part of the taxi driver licensing regime in Northern Ireland. The Security Industry Authority also carries out a criminal record check on anyone who applies for a security licence.
It is important to ensure that a position is eligible for an AccessNI check before starting the process. Eligibility is governed by the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (as amended). You should contact AccessNI if you are unsure whether a position is eligible for a check.
Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a criminal records check.
There are three types of criminal records check - basic, standard and enhanced. Legislative provisions may require that either a Standard or Enhanced Disclosure is requested for someone commencing employment in certain sectors. The type of check you will need to make will depend on the work that is to be undertaken.
The Disclosure and Barring Service (DBS) helps employers in Northern Ireland make safer recruitment decisions. The main criminal record checks are now called a DBS check. A DBS check is only necessary for certain types of jobs involving vulnerable groups eg working with children, in healthcare, prisons and courts. The DBS was established in 2012 and carries out the functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority. It is accessible through AccessNI.
For more information on each type of check, see AccessNI criminal records checks.
Avoiding discrimination
Once you have received your copy of the AccessNI disclosure certificate, you can assess whether the candidate is suitable for the job. An AccessNI disclosure will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978, someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore after a certain period of time, you should treat the person as if the conviction had not happened.
However, a conviction resulting in a prison sentence of more than two and a half years can never be spent.
A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders (Northern Ireland) 1978, including:
- regular contact with children and vulnerable adults
- accountancy
- work as a barrister
- police work
- posts relating to the administration of justice or financial regulation
- posts involving national security
Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:
- how long ago the offence was committed
- the candidate's age at the time
- the relevance of the offence to the job offered
- the penalty awarded
- whether the offence was isolated or part of a pattern of offending
- what is known about the person's behaviour before and since
People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.
For details of your legal obligations when applying for AccessNI checks and using the sensitive personal information on a certificate see employing someone with a criminal record.
Read employers' guidance on recruiting people with Northern Ireland conflict-related convictions.
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Pre-employment checks: ensuring candidates are eligible to work in the UK
Preventing illegal working - the checks you must make, who is eligible for work and who needs permission.
A new immigration system applies to people arriving in the UK from 1 January 2021. EU citizens moving to the UK to work will need to get a visa in advance. Employers need a sponsor licence to hire most workers from outside the UK. See right to work checks: employing EU, EEA and Swiss citizens.
All employers in the UK have a responsibility to stop illegal workers. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty or criminal conviction.
British citizens can currently work in the UK without restrictions. Since 1 July 2021, Irish citizens can continue to use their passport or passport card to prove their right to work in the UK.
All other EU, EEA, and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You'll need to check their right to work online using:
- a share code
- their date of birth
You can also check someone's original documents instead if they do not have a UK immigration status that can be shared with your digitally. Check which types of documents give someone the right to work in the UK.
You could face a civil penalty if you employ a worker and have not carried out a correct right-to-work check.
Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UK Visas and Immigration (UKVI).
For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.
In addition, check if someone can work in the UK on the GOV.UK website.
Employing someone who needs permission to work in the UK
You may need a sponsor licence to employ someone from outside the UK.
You do not need to sponsor an EEA or Swiss national, or their eligible family members, if they arrived in the UK before 11pm on 31 December 2020, provided they applied for status on the EU Settlement Scheme by 30 June 2021 and that application was granted. With limited exceptions, you do not need to sponsor Irish citizens.
Read GOV.UK guidance on sponsorship.
For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.
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Withdrawing job offers where checks are not satisfactory
Conditional job offers can be withdrawn if checks prove unsatisfactory.
No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.
You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.
If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory - see pre-employment checks: checking references.
You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.
If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement and follow the statutory dismissal procedure in terminating their employment. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, eg for discrimination.
If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.
For more guidance, see the employment contract and issue the correct periods of notice.
An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.
Employees cannot claim unfair dismissal before completing one year's service unless it is for a number of automatically unfair reasons. Read more on dismissing employees.
However, an employee dismissed during - or at - the completion of their probationary period may be able to claim breach of contract if - for example - you have not provided training that you promised would be given.
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Pre-employment checks: data protection issues
Data protection considerations when making pre-employment checks.
The Data Protection Act 2018 applies to personal information - data about living, identified, or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.
Six data protection principles
There are six data protection principles. Information should be:
- lawfulness, fairness and transparency - you must process personal data that you collect on individuals in a lawful, fair and transparent manner
- purpose limitation - you must only collect personal data for a specific, explicit and legitimate purpose and you must clearly state what this purpose is and only hold the data for as long as necessary to complete that purpose
- data minimisation - you must ensure that personal data you process is adequate, relevant, and limited to what is necessary in relation to your processing purpose
- accuracy - you must take every reasonable step to update or remove data that is inaccurate or incomplete and individuals have the right to request that you erase or rectify erroneous data that relates to them
- storage limitation - you must delete personal data when you no longer need it and timescales are dependent on your business' circumstances and the reasons why you collect this data
- integrity and confidentiality - you must keep personal data safe and protected against unauthorised or unlawful processing and against accidental loss, destruction or damage
Read Information Commissioner's Office (ICO) guidance on data protection.
The use of sensitive information - including information that might be disclosed during a criminal records check - is more tightly controlled. For further information, see ICO guidance on criminal offence data.
Guidelines to follow
There are some guidelines you should keep in mind in relation to pre-employment checks.
You should:
- only carry out checks which are necessary
- think carefully about the best point in the process to carry out the different checks
- where possible, only check the successful applicant
- let applicants know what checks will be made and how they will be carried out
- make sure that checks are carried out for a specific purpose
- only use sources which will reveal relevant information
- only rely on information that comes from sources you trust
- give the candidate the chance to explain if a check reveals adverse information about them
- if a third party is to be involved in the process - eg a previous employer not listed as a referee - let the applicant know
Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. Any information gathered must not be kept for longer than is needed for its legitimate purpose.
The candidate has the right to ask to see any information you hold on them which you must supply within one month of receiving the request. This information will be provided free of charge, however, where requests are manifestly unfounded or excessive you can charge a reasonable fee for the administrative costs of providing the information.
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Adoption leave and protection against detriment or dismissal
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £184.03
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Minimum periods of continuous employment and qualification dates for employment rights
In this guide:
- Continuous employment and employee rights
- What does continuous employment mean?
- Continuous employment and breaks in work
- Continuous employment for statutory payments
- Reinstating or re-engaging an employee
- Continuous employment when there is a change of employer
- Minimum periods of continuous employment and qualification dates for employment rights
What does continuous employment mean?
How continuous employment is defined, how to treat short breaks in employment and related employee rights.
Continuous employment usually means working for the same employer without a break, or with short breaks that don't interrupt continuity of employment. These breaks may include time out of service due to strikes, lock-outs, and even unfair dismissal where the employee is reinstated or re-engaged into the service.
Employment can sometimes also be treated as continuous if your employee has previously been with a different employer, for example following the transfer of a business or undertaking. See responsibilities to employees if you buy or sell a business.
When does continuous employment begin and end?
To work out how long an employee has been continuously employed, you should first establish the date on which they qualify for a particular right - their qualification date - for the entitlement in question. The qualification date is defined differently for each entitlement.
See a table showing minimum periods of continuous employment and qualification dates for employment rights.
Once you have established the qualification date, you should count back from that date to the date of their first day of work with you.
However, remember that time with a previous employer can sometimes be added to the time with a present employer - see the effect a change of employer has on continuous employment.
Within the period of continuous employment, there may be:
- breaks in employment that don't break the continuity of employment
- periods which don't count towards the total length of continuous employment but also don't break continuity
See continuous employment and breaks in work.
An industrial tribunal can settle any dispute about the length of an employee's continuous service. Generally, the tribunal will assume the employment was continuous until it is shown otherwise.
Notice periods and continuous employment
The 'effective date of termination' - for the purpose of calculating the length of service - is the date on which employment ends following the notice period. If you do not give an employee any notice, the effective date of termination will be the date on which that statutory notice would have expired if you had given them notice.
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Continuous employment and breaks in work
Industrial action, employment overseas and military service can affect how an employee's start date is calculated.
To find out whether an employee's full-service period - from the start of their employment to the qualification date - has been continuous and whether it all counts, you must consider it week by week.
For this purpose, a week is a period of seven days ending on a Saturday. If at any point continuity has been broken, the weeks before the most recent break will not count towards the employee's continuous employment.
A week normally counts towards a period of continuous employment if, in that week, the employee actually works or the employee's relations with the employer are governed by a contract of employment.
Absence from work because of sickness, maternity, paternity, adoption, and parental leave, temporary lay-off and annual leave all count towards continuous employment automatically, provided the contract continues throughout.
Industrial action
If an employee takes part in a strike, you should treat their starting date as postponed by the number of days between the last working day before the employee was on strike and the day on which they resumed work.
The starting date is not, however, postponed by periods of lockout, ie where the employer prevents employees from entering the workplace.
The employee's period on strike does not break the continuity of employment, except in some circumstances where the employer dismisses the employee during the strike.
Employment overseas
Service abroad generally counts towards continuous employment. In determining rights to a statutory redundancy payment, a week of this service only counts if the employee was classed as an employed earner during that week.
An 'employed earner' is someone for whom you pay Class 1 National Insurance contributions (NICs) - or for whom you would pay Class 1 NICs if they earned above the lower earnings threshold. Rates and thresholds for employers 2024 to 2025.
Military service
If you employ a member of the volunteer reserve forces who is returning from a period of military service, you must reinstate them in their old job or a similar position.
If you terminate a person's employment solely or mainly because of their liability to be mobilised for military service, you will be committing an offense, and a court can order you to pay compensation as well as levying a fine.
See if a Reservist employee is called up for service.
Weeks when there is no contract
Weeks during which an employee has no contract of employment may count towards continuous employment - and will not break the continuity of employment - if one of the following occurs:
- work ceases temporarily
- an employee is away from work sick or injured and is then re-engaged within 26 weeks of the contract being terminated
- the employee is away in circumstances in which their employment is regarded as continuing for some purposes, by arrangement or custom
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Continuous employment for statutory payments
Employees need to meet certain criteria in order to qualify for a statutory redundancy or parental payment.
Employees must meet qualification criteria to receive certain statutory payments, namely:
- statutory redundancy pay (SRP)
- statutory maternity pay (SMP)
- statutory paternity pay (SPP)
- statutory adoption pay (SAP)
- statutory shared parental pay (ShPP)
- statutory parental bereavement pay (SPBP)
Continuous service for SRP
Redundant employees have a number of rights, the main one being the right to receive SRP. In order to qualify for SRP, they must have at least two years of continuous service.
Employment may be treated as continuous for redundancy pay purposes if, for example, an individual is employed by a specified local government employer and moves to another specified employer within Northern Ireland. Similar legislative provisions operate in Great Britain, but there is currently no reciprocal arrangement between Great Britain and Northern Ireland.
Continuous service is counted backward from the 'relevant date' - usually the date the notice you give to your employee expires. If you give less than the legal minimum notice, the extra notice you should have given is added on.
SRP is based on an employee's amount of continuous service - up to a maximum of 20 years. Certain absences - eg sickness or lay-offs - can count towards continuous service even if the contract of employment was suspended. See continuous employment and breaks in work.
When working out continuous service for SRP, you should deduct any strike days from the total length of service. Note that going on strike does not actually break the continuity of employment.
If an employee is made redundant and is due to start another job (under a new employment contract) with the same employer then continuity of employment will be preserved so long as they start their new job within four weeks of the effective date of termination of their previous employment contract. Note that the offer to start the new job with the same employer must be made prior to the dismissal taking effect.
Continuous service for SMP, SPP, SAP, ShPP, and SPBP
For more on the continuous service requirements for these payments, see our guidance on:
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Reinstating or re-engaging an employee
Conditions when reinstating or re-engaging an employee after they have been unfairly dismissed classes as continuous employment.
If you reinstate or re-engage an employee who has complained of unfair dismissal, the weeks between the dismissal taking effect and the resumption of work will count towards continuous employment. It works as though there had never been a dismissal, and continuity of employment is maintained.
However, this depends on the reinstatement or re-engagement arising from one of the following:
- an order of a tribunal which has found the dismissal unfair
- a claim made under a dismissals procedure designated by the Department for the Economy (DfE)
- an agreement reached with the help of a Labour Relations Agency (LRA) conciliator or the LRA arbitration scheme
- a compromise agreement under the relevant legislation
- an applicable statutory dispute resolution procedure
See dismissing employees.
Reinstating military reservists
After a reservist has been mobilised, you must reinstate that employee in their old job on their return from service provided that:
- the reservist applies for reinstatement in due time
- your business continues unchanged
If you cannot reinstate the reservist in their original role, you must offer a suitable alternative position with the same terms and conditions of service.
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Continuous employment when there is a change of employer
Transfer of a business from one employer to another and other such changes do not break continuity in employment.
Normally, when an employee changes employer, this breaks continuity and their continuous employment must begin again.
However, continuous employment is preserved if:
- under an Act of Parliament or Northern Ireland Assembly, one corporate body takes over from another as the employer
- the employer dies and their personal representatives or trustees keep the employee on
- there is a change in the partners, personal representatives, or trustees who employ the employee
- the employee moves from one employer to another when, at the time of the move, the two employers are associated employers
- the employee of a health service employer moves to another health service employer while undergoing training
Continuous employment is also preserved when a business or an undertaking - or part of a business - is transferred from one employer to another. Continuity will also be preserved where there is a service provision change, such as a service previously undertaken by an employer being awarded to another contractor.
See responsibilities to employees if you buy or sell a business.
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Minimum periods of continuous employment and qualification dates for employment rights
Table setting out the minimum periods of continuous employment needed to qualify for certain statutory employment rights.
The following table sets out the minimum periods of continuous employment an employee needs to qualify for certain statutory employment rights. It also gives the relevant date on which an employee qualifies for that right.
Note that any statutory employment rights not listed here have no minimum service requirement. For example, an employee has the right to take statutory maternity leave or paid annual leave from day one of their employment.
Statutory employment right Minimum period of continuous employment needed to qualify Qualification date Further information Guarantee payment One month. The day before that in respect of which the guarantee payment is claimed. Pay: employer obligations Remuneration on suspension on medical grounds One month. The day before that on which the suspension begins. Notice of termination One month. Date notice is given. Issue the correct periods of notice Written statement of the particulars of employment One month. The written statement Maternity pay 26 weeks. End of the 15th week before the expected week of childbirth. Maternity leave and pay Paternity leave and pay (births) 26 weeks. End of the 15th week before the expected week of childbirth. Paternity leave and pay Paternity leave and pay (UK adoptions) 26 weeks. End of the week in which the main adopter was notified of having been matched with the child for adoption. Paternity leave and pay Paternity leave and pay (overseas adoptions) 26 weeks. End of the week in which the main adopter received an official notification or by the time their leave/pay is due to begin, whichever is later. Paternity leave and pay Adoption leave and pay (UK adoptions) 26 weeks in respect of adoption pay but adoption leave is a day one right. End of the week which adopter was notified of having been matched with the child for adoption. Adoption leave and pay Adoption leave and pay (overseas adoptions) 26 weeks in respect of adoption pay and adoption leave. End of the week in which the adopter received an official notification or by the time their leave/pay is due to begin, whichever is later. Adoption leave and pay Parental bereavement leave and pay 26 weeks in respect of parental bereavement pay but parental bereavement leave is a day-one right. The employee or worker must have been continuously employed by you for at least 26 weeks up to the end of the ‘relevant week’. The ‘relevant week’ is the week (ending with a Saturday) immediately before the week of the death or stillbirth. Parental Bereavement Leave and Pay Right to make a flexible working request 26 weeks. Date of application. Flexible working: the law and best practice Parental leave One year. The start date of their first period of parental leave. Parental leave and time off for dependants Written statement of reasons for dismissal One year (none if dismissal occurs during an employee's pregnancy or statutory maternity leave). Generally, the last day on which the employee worked. Dismissing employees Right to claim unfair dismissal Generally, one year, but dismissals for an automatically unfair reason require no minimum length of service, eg dismissals relating to pregnancy or maternity. (One month where medical suspension could apply). The date when an employee's contractual notice or statutory minimum notice expires (or would have expired), whichever is later. Dismissing employees Redundancy payment Two years. The date when the employee's contractual notice or statutory minimum notice expires (or would have expired), whichever is later. Redundancy: the options Paid time off to look for work or to arrange training when being made redundant Two years. If the employer gives redundancy notice in person, the notice period should start from the next day. If the notice is given by email or post, the notice period should start when the employee has had time to read it. Redundancy: the options To become a permanent employee on the renewal of a fixed-term contract (or re-engagement on a new fixed-term contract) and to a written statement confirming this Four years unless continuation of the fixed-term contract can be objectively justified. The date on which the employee acquired four years of continuous service. Recruiting staff
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