Adoption leave and pay

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:

• took Statutory Adoption Leave
• sought to take 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.

See redundancy: the options.

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).