During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave 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 adoption 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 the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Pay begins, as part of your planning for Statutory Adoption Leave.
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.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch 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 keeping-in-touch day counts as one keeping-in-touch 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 keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch 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 when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay 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. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch 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 keeping-in-touch day
- worked - or considered working - a keeping-in-touch 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