15 October 2007

Recent media interest in high profile cases has raised awareness to adoption as a parental option. Although adoption remains a far less common occurrence than a pregnancy, employers still need to be aware of their obligations should the situation arise. Are you ready to respond if one of your employees adopts from the UK or overseas?

In April 2003, adoptive parents were, for the first time, afforded similar privileges to natural parents and were given a statutory right to adoption leave and statutory adoption pay, introduced under the Employment Act 2002. These rights have now been extended under the Work Families Act 2006 for placements with effect from 1st April 2007. The statutory rights only apply to employees who are adopting through a UK or overseas adoption agency. Adoptions where no agency is involved, for example a formal adoption of a step-child, do not qualify for these rights. In addition, where a couple adopt jointly, only one of the couple will be eligible to benefit from adoption leave and pay, the other partner may be entitled to statutory paternity leave and pay.

The core statutory benefits, namely the right to 26 weeks Ordinary Adoption Leave immediately followed by 26 weeks Additional Adoption Leave and 39 weeks Statutory Adoption Pay, apply in the case of both UK and overseas adoptions. However there are other subtle differences that employers ought to be aware of regarding the eligibility criteria, notice and evidential requirements and when leave and pay may begin. Essentially for:

UK adoptions

Overseas adoptions

• The employee must have received “official notification” from the relevant authority, normally the Department of Health, confirming that  he/she has been assessed and approved as being a suitable adoptive parent
• The employee must inform the employer within 28 days of receiving the official notification or within 28 days of completing 26 weeks’ service, whichever is the later, of their intention to take adoption leave and confirm the date the child is expected to enter the UK and the date they intend their leave to start
• Employees must give a minimum of 28 days’ notice of the start of their adoption leave and pay, which can commence from the date of the child’s entry into the UK or up to 28 days later
• Entitlement to pay is calculated over a period of 8 weeks ending with the week in which official notification was received or ending with the week at which he/she completes 26 weeks’ continuous service, whichever is later.

Employers who breach the statutory rights to adoption leave and pay face legal consequences. Employees have the right not to be subjected to any detriment by any act, or omission, of their employer for a reason which relates to adoption leave and any dismissal on the grounds of, or connected to, adoption leave is automatically unfair.

Enterprise Rent-A-Car (UK) Ltd found this out to their cost in February of this year, in what is believed to be the first case concerning the adoption laws. The employee won her claim for unfair dismissal and sex discrimination when she established that she had been dismissed for genuine and minor errors for which male comparators in the past had only been reprimanded and that the real reason behind her dismissal had actually been because of her plans to adopt and her intention to take adoption leave.

Employers should also bear in mind that adoptive parents have the right to request flexible working for a child under the age of 6, or a disabled child under the age of 18. From 1st October 2007 the definition of an adopter under the Flexible Working Regulations was amended to cover adoptions through agencies outside of the UK. Adoptive parents are also entitled to take up to 13 weeks’ parental leave during the first five years following the adoption or until the child reaches the age of 18, whichever is the earlier. 

Organisations with family friendly values may wish to contact their local agency in the run up to National Adoption Week, which takes place between 5 -11 November 2007 to help promote adoption in the workplace.