Adoption leave and pay

Contact and work during adoption leave

During the statutory adoption leave (SAL) period you can make reasonable contact with an employee - and they may make contact with you.

In addition, an employee can come to work as a way of keeping in touch with workplace developments.

Contact with employees on SAL

You can make reasonable contact with the employee by any means, eg telephone, email, letter, 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 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 whether the employee prefers to have frequent or minimal contact with you and the issues to be discussed. You should discuss this with your employee before the SAP begins, as part of your planning for SAL.

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.

Keeping-in-touch (KIT) days during SAL

Employees may, in agreement with you, work for up to ten days - known as KIT days - under their employment contract during their SAL period without it affecting their right to statutory adoption leave or pay.

During KIT 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 KIT day counts as one KIT 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 KIT days.

If work on a KIT 'day' spans midnight, this counts as one KIT day - as long as this is the employee's normal working pattern.

Payment for KIT days

You and the employee should agree on how much you will pay them for a KIT 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 (SAP) when they work a KIT day, you must continue to pay their SAP for that week.

If the employee does more than ten days' work for you in their SAP period, they are not entitled to SAP for any week in which they work if they have already worked ten KIT days. You do not have to pay them SAP for any week in which they have worked both the last of their KIT days and any additional days.

The SAP the employee receives for the week in which they work a KIT day can count towards any contractual pay you agree with them for working that KIT day. However, you could agree that they will receive their normal daily rate in addition to the SAP for that week.

Whatever the arrangement, you can still continue to recover SAP from HM Revenue & Customs (HMRC) 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.

Protection against detriment or dismissal in relation to KIT days

An employee can only work a KIT day if they want to and you agree to it - you cannot make an employee work a KIT day against their wishes, nor can the employee insist they work a KIT 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 KIT day
  • worked - or considered working - a KIT 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