Adoptive Parents – Rights to Leave & Pay

Paternity leave and pay (adoption)

Following the placement of a child for adoption, the rights to paternity leave and pay give eligible employees the right to take paid leave to care for their new child or support the adopter.

Eligibility

Employees must satisfy the following conditions in order to qualify for paternity leave. They must:

  • have or expect to have responsibility for the child’s upbringing
  • be the adopter’s spouse or partner
  • have worked continuously for their employer for 26 weeks ending with the week in which the adopter is notified of being matched with a child.

Employers can ask their employees to provide a self-certificate (see below for further details) as evidence that they meet these eligibility conditions.

Length of paternity leave

Eligible employees are entitled to choose to take either one week or two consecutive weeks’ paid paternity leave (not odd days).

They can choose to start their leave:

  • from the date of the child’s placement (whether this is earlier or later than expected), or
  • from a chosen number of days or week after the date of the child’s placement (whether this is earlier or later than expected), or
  • from a chosen date which is later than the date on which the child is expected to be placed with the adopter.

Leave can start on any day of the week on or following the child’s placement but must be completed within 56 days of the child’s placement.

Only one period of leave is available to employees irrespective of whether more than one child is placed together.

Statutory Paternity Pay

During their paternity leave, most employees are entitled to Statutory Paternity Pay (SPP) from their employers.

Statutory Paternity Pay is paid by employers for either one or two consecutive weeks as the employee has chosen. The rate of Statutory Paternity Pay is the same as the standard rate of Statutory Maternity Pay – from April 2003, this will be £100 a week or 90% of average weekly earnings if this is less than £100.

Employees who have average weekly earnings below the Lower Earnings Limit for National Insurance purposes (£75 a week from April 2002) do not qualify for SPP. Employees who do not qualify for SPP, or who are normally low paid, may be able to get Income Support while on paternity leave. Additional financial support may be available through Housing Benefit, Council Tax Benefit, Tax Credits or a Sure Start Maternity Grant. Further information is available from your local Jobcentre Plus office or Social Security office.

Notice of intention to take paternity leave

Employees must inform their employers of their intention to take paternity leave within seven days of the adopter being notified by their adoption agency that they have been matched with a child, unless this is not reasonably practicable. They must tell their employers:

  • the date on which the adopter was notified of having been matched with the child
  • when the child is expected to be placed
  • whether they wish to take one or two weeks’ leave
  • when they want their leave to start.

Employees can change their mind about the date on which they want their leave to start providing they tell their employer 28 days in advance (unless this is not reasonably practicable). Employees can tell their employers the date they expect any payments of SPP to start at least 28 days in advance, unless this is not reasonably practicable.

Self certificate

Employees must give their employers a completed self certificate as evidence of their entitlement to SPP. A model self certificate for employers and employees to use (if they wish to do so) is available. Employers can also request a completed self certificate as evidence of entitlement to paternity leave. The self certificate must include a declaration that the employee meets certain eligibility conditions and provide the information specified above as part of the notice requirements.

By providing a completed self certificate, employees can satisfy both the notice and evidence conditions for paternity leave and pay. Employers are not expected to carry out any further checks.

Contractual benefits

Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise), throughout their paternity leave. However, most employees are entitled to SPP for this period. If the employee has a contractual right to paternity leave as well as the statutory right, he may take advantage of whichever is the more favourable. Any paternity pay to which he has a contractual right reduces the amount of SPP to which he is entitled.

Return to work after paternity leave

Employees are entitled to return to the same job following paternity leave.

Protection from detriment and dismissal

Employees are protected from suffering unfair treatment or dismissal for taking, or seeking to take, paternity leave. Employees who believe they have been treated unfairly can complain to an employment tribunal.

Employers’ recovery of payments

Employers can recover the amount of Statutory Paternity Pay (SPP) they pay out in the same way as they can claim back Statutory Maternity Pay. Employers can claim back 92% of the payments they make, with those eligible for small employers’ relief able to claim back 100% plus an additional amount in compensation for the employer’s portion of National Insurance contributions paid on SPP.

In addition, employers who need to can get funding in advance for payments of SPP from the Inland Revenue.

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