- Owed money from a bankrupt or a company in liquidation
- Who deals with bankruptcy and company liquidation claims?
- Ensuring you are registered as a creditor
- Order of priority for repayment of creditors
- Making a bankruptcy or company liquidation claim
- Creditors' meetings and creditors'/liquidation committees
- Conduct and voting at creditors' meetings
- Completion of bankruptcy and company liquidation cases
Who deals with bankruptcy and company liquidation claims?The role of the official receiver, insolvency practitioner, trustee and liquidator, and relevant costs and fees
The early stages of a bankruptcy or compulsory liquidation are usually handled by the official receiver (OR). If there are significant assets, an insolvency practitioner (IP) may be appointed as trustee/liquidator in place of the OR.
The OR is a civil servant at the Insolvency Service and an officer of the High Court. The Insolvency Service is responsible for dealing with financial failure and misconduct through the OR. As well as administering cases, the OR has a duty to investigate the affairs of individuals in bankruptcy and companies in compulsory liquidation.
IPs are licensed insolvency specialists who work in the private sector - usually as accountants or solicitors. By law, they must be authorised to act as IPs. They handle all other insolvency procedures except fast-track voluntary arrangements and debt relief orders. To find out more see individual voluntary arrangements, administration orders and debt relief orders.
Both the OR and IPs are legally required to report unfit conduct to the Directors Disqualification Unit of The Insolvency Service. They will then decide whether or not to begin court proceedings to disqualify the director or extend the restrictions on a bankrupt.
The trustee in bankruptcy is the OR/IP who takes control of the assets. The trustee's main duties are to sell these assets and share out the money among the creditors.
The liquidator is the OR/IP appointed to administer the liquidation of a company or partnership.
Trustee or liquidator payment
Payment - known as remuneration - the OR acting as trustee/liquidator is specified under insolvency law.
If an IP is acting as trustee/liquidator, the remuneration can be fixed as a percentage of the value of the assets realised - sold - and distributed, or on a time basis. If creditors don't agree a remuneration, the IP gets the same amount that would have been paid to the OR - unless the IP applies to court and arranges a higher amount.Also on this site
Ensuring you are registered as a creditorHow to find contact details for the official receiver or insolvency practitioner dealing with your debtor's case
If the official receiver (OR) or insolvency practitioner (IP) dealing with the case of someone who owes you money knows that you are a creditor, you should be contacted automatically. All known creditors are notified of the initial bankruptcy or winding-up order.
If you believe a company or individual that owes you money may be subject to insolvency proceedings, and you haven't been notified, you should write to the OR/IP dealing with it. You should give the full name of the company or individual, as well as your own details.
Any information you can provide about the assets of the company or individual - or about the conduct of the director(s) or individual - would also be useful.
There are various ways of finding out who is dealing with the case:
- For a company insolvency, search for details using the Companies House BETA service.
- Contact the Insolvency Service NI Enquiry Line on Tel 028 9054 8531 or by email at email@example.com.
- Insolvency notices and details about administrators/liquidators/trustees are published in The Belfast Gazette.
If a partnership is involved, bankruptcy orders may have been made against individual partners - details of which would be on the register maintained by the High Court.
Don't expect frequent updates from the OR/IP. After your claim is filed, you will be sent a report to creditors - which will give you information about the assets and liabilities of the company or individual, and the circumstances of the insolvency.
It can take weeks, months or even years to realise - sell - assets. If you are concerned, contact the OR/IP handling the case. Remember to notify the OR/IP if you change your address.Also on this site
Order of priority for repayment of creditorsThe strict order of priority in which creditors are repaid
Secured creditors are the first to get paid when a debtor's assets are realised - sold or disposed of to raise money. For example, a creditor who holds a fixed charge - a security interest taken to protect against non-payment of debt - or security on an asset such as a mortgage has the right to sell the asset to recover their debt. Any surplus money is then handed over to the trustee/liquidator.
After the secured debts have been repaid, the trustee/liquidator distributes the remaining proceeds to pay the following - in strict order of priority:
- Liquidation/bankruptcy fees and charges - this does not include court fees.
- Debts due to preferential creditors - those entitled to certain payments in priority over other unsecured creditors - including wages owed in the four months before the date of the insolvency order, as well as all holiday pay and contributions to occupational pension schemes.
- In company cases, any creditor holding a floating charge over an asset, such as a debenture. This is where a class of goods or assets - eg the debtor's stock - are named as security for a debt.
- All unsecured creditors.
- Any interest payable on debts.
- The shareholders in company cases.
If full repayment of unsecured claims isn't possible, the money available is divided between creditors in proportion to the value of each claim.
How much you are paid will depend on the amount of money that can be realised and the number of claims. If there are few assets, you may not get anything.
If you wish to see a full list of creditors showing how much each is owed, you can ask the official receiver (OR)/insolvency practitioner (IP) for this. The OR/IP is allowed to charge a fee for this service. Alternatively, you have a right to view the court file - unless the court directs otherwise.
If a statement of affairs has been submitted, the OR/IP will direct you to the court file. A statement of affairs is a document completed by a bankrupt, company officer, or director(s) stating the assets and giving details of all debts and creditors.
When paying a dividend, the OR/IP can reject the whole or part of a creditor's claim but must give reasons for doing so in writing. If you are dissatisfied with the decision on your claim, you can apply to the court in which the bankruptcy or winding-up order was made for it to be reversed or varied.Also on this site
Making a bankruptcy or company liquidation claimSubmitting a proof of debt form for your claim
If you have been contacted by the official receiver (OR) or insolvency practitioner (IP) who is acting as the trustee/liquidator, then they already have a note of your claim. If you contacted the OR/IP, your details will have been added to the list of creditors.
You will be sent a proof of debt form to complete and return if the OR/IP intends to make a payment to creditors or hold a meeting of creditors. The information you provide helps the OR/IP confirm that you are a genuine creditor and the amount you are owed.Also on this site
Creditors' meetings and creditors'/liquidation committeesProcedures for calling a meeting of creditors and for appointing a creditors' committee or liquidation committee
The official receiver (OR) usually decides to hold a first meeting of creditors if there are significant assets to be realised - ie sold. This is so creditors can vote to appoint an insolvency practitioner (IP) as trustee or liquidator.
If the OR doesn't believe the assets available are enough to attract an IP, the OR will send notice to all creditors that no first meeting is to be held and that they will be the trustee/liquidator.
The OR must hold a first meeting if it's requested, in writing, by enough creditors to account for at least 25 per cent of the value of debt owed. Creditors requesting a meeting have to lodge a deposit to cover any costs of that meeting.
Further meetings of creditors - called general meetings - are sometimes held, if:
- requested by enough creditors to account for at least 25 per cent of the value of debt owed
- the trustee/liquidator wants to find out the creditors' wishes in any matter relating to the insolvency proceedings
Where an IP is trustee/liquidator, a final meeting of creditors will eventually be called - see completion of bankruptcy and company liquidation cases.
Appointing a creditors'/liquidation committee
Where an IP is appointed, a creditors/liquidation committee can also be appointed to supervise the trustee/liquidator on behalf of the creditors. In liquidations - it's called a liquidation committee, in bankruptcies - it's called a creditors' committee.
The committee consists of between three and five elected creditors. You have a right to nominate yourself or any other creditor to be a committee member, and you can vote for yourself. The elected creditor can act personally, or appoint a representative.
If certain actions are proposed by the trustee/liquidator, they need to be approved by the creditors'/liquidation committee.Also on this site
Conduct and voting at creditors' meetingsWhat happens at a first meeting of creditors, how an insolvency practitioner is appointed and the rules on voting
At a first meeting of creditors, the chair - usually the official receiver (OR) will check that everyone present is allowed to be at the meeting, explain its purpose and give details about the insolvent's assets. The meeting then votes on the appointment of an insolvency practitioner (IP) as trustee or liquidator.
You can normally only vote at a meeting if you returned your proof of debt form to the OR within the time limit specified. For more information on proof of debt forms, see making a claim and the order of repayment.
If you won't be attending the meeting and would like someone to vote on your behalf, you must submit a proxy form. You will find the proxy form supplied with the OR's notice that the creditors' meeting has been called.
Voting at a meeting of creditors is by value. This means certain voters may have more than one or a greater proportion of the vote - dependent on the amount of money they are owed. The chair will calculate this after checking the proofs of debt and proxy forms that have been submitted.
For an IP to be appointed by the meeting of creditors, the vote must be supported by a majority in value - relating to the total debt owed.Also on this site
Completion of bankruptcy and company liquidation casesHow the official receiver or insolvency practitioner is released from the case and your right to object
If the official receiver (OR) is dealing with the insolvency case for which you are a creditor, they will inform you when they have completed the insolvency. You will also be sent a summary of the OR's receipts and payments as trustee/liquidator.
As a creditor, you can object to the OR's release. Generally, the OR's release can only be withheld if they have failed to realise - sell - assets that were available to be realised, or have misapplied the proceeds of any assets realised.
If an insolvency practitioner (IP) is dealing with the case, you will be invited to the final meeting of creditors. At this meeting, the IP will report on how they have handled the case and give a summary of the receipts and payments. The creditors may question the liquidator about what is in the report and have the option of either granting or refusing the release of the IP.
What legal action can I take against the bankrupt, company or the trustee/liquidator?
After the date of the court order, unsecured creditors cannot take any action against the bankrupt or company without the court's consent. You must submit your claim to the trustee/liquidator. You can apply to the court if you are dissatisfied with the actions of the OR/IP. Before you apply to the court you may wish to take legal advice.Also on this site
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how you, as an employer, may offer enhanced leave rights
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that that employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts, or one member of a couple where the couple adopt jointly. This means that where a couple adopt jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks' ordinary adoption leave followed immediately by 26 weeks' additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
It does not matter how long the employee has worked for you.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child, or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
Again, as with UK adoptions, since 5 April 2015 it does not matter how long the employee has worked for you (the prior requirement for 26 weeks' continuous employment has been removed).
Joint and individual adoptions
Where a couple are adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still applies. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster caring does not count.
A special guardian is usually someone with a close relationship to the child, such as a family member, former foster carer or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order Parents) may be eligible for adoption leave and pay where they intend to apply for, or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for a such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working - the eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.Also on this site
UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements for covering the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification, unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks' Statutory Adoption Leave by notifying you of this:
Also on this site
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).Also on this site
Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).Also on this site
Adoption leave: when it can begin
Beginning statutory adoption leave (SAL) and changing the SAL start date if the adoption doesn't take place as planned
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree about the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. You could, however, allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born; but if the employee is at work on that day then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date
- 28 days before their new Statutory Adoption Leave start date
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.Also on this site
Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing length of service payments.
Therefore, when assessing length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.Also on this site
Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue both their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.Also on this site
Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave
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 Leave period begins, as part of your planning for the employee's 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:
Also on this site
- 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
Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks' Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the original planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return are not required to pay back any statutory adoption pay they have received. See adoption pay.Also on this site
Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, 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 if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home or do part-time hours. Read more on flexible working: the law and best practice.Also on this site
Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took or sought to take Statutory Adoption Leave
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 which you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- 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.
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 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
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.
Who qualifies for Statutory Adoption Pay, how employers may recover payments and offering enhanced adoption pay
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks you must pay your employee Statutory Adoption Pay a weekly rate equal to 90 per cent of their average weekly earnings.
For the next 33 weeks you must pay them the lower of the following:
- the standard weekly rate - £151.97
- 90 per cent of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.Also on this site