Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, statutory adoption leave (SAL).
Detrimental treatment and SAL
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- took SAL
- sought to take SAL
Examples of detrimental treatment include denial of promotion, facilities or training opportunities which 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 SAL
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, you must offer them (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
- 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 unfair.
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 (SAP) continues until the end of the 39-week SAP 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 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 notification and confirmation of adoption leave - UK adoptions
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
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.