Home Advice & informationAdoption Adoption Leave: Redundancy, Detriment, Dismissal and Remedies

Adoption Leave: Redundancy, Detriment, Dismissal and Remedies

What happens if I am made redundant while on adoption leave?

What happens if I am not offered a suitable vacancy after being made redundant whilst on adoption leave?

What happens if I suffer a detriment as a result of taking or wanting to take adoption leave?

What happens if I am dismissed because I took or wanted to take adoption leave?

Could I bring a claim for discrimination if I am dismissed or suffer a detriment because I took or want to take adoption leave?

Remedies: Detriment and Unfair dismissal

 

Q. What happens if I am made redundant while on adoption leave?

An employer cannot make you redundant simply because you took or wish to take ordinary or additional adoption leave (or because your employer believes you are going to take it). If your employer did make you redundant for this reason you could make a complaint of automatic unfair dismissal.

If a redundancy situation arises whilst you are on adoption leave (i.e. not because you took adoption leave) and it is not practicable for your employer to continue to employ you under your existing contract because of redundancy, you are entitled to be offered suitable alternative employment by your employer or an associated employer if there is a vacancy.

If there is a suitable vacancy you are entitled to be offered a new employment contract provided that:

  • The work is suitable and appropriate for you to do; and
  • The role, place of employment and terms and conditions of the new employment contract are not substantially less favourable than those under your previous contract.

You should be given priority for any suitable vacancies over any other employees who are also at risk of redundancy but are not on maternity or adoption leave.

Q. What happens if I am not offered a suitable vacancy after being made redundant whilst on adoption leave?

If there is a suitable vacancy available for you and your employer does not offer it to you may bring a claim for automatically unfair dismissal.

If your employer offers you suitable alternative employment and you refuse it, your employer is likely to have been fair in dismissing you and you will not be able to bring an unfair dismissal claim. In this situation you would also lose your right to a statutory redundancy payment.

If there is no suitable vacancy available, your employment (and period of statutory adoption leave (SAL)) will be terminated because of the redundancy. In this situation you are entitled to your notice pay and to a written statement from your employer with the reasons for your dismissal. You will also be entitled to a redundancy payment if you have over two years’ continuous service. If your dismissal occurred during your SAL period, you are also entitled to your SAL pay for the entire 39 weeks.

See ‘Remedies’ below for the remedies available for unfair dismissal

 

Q. What happens if I suffer a detriment as a result of taking or wanting to take adoption leave?

You have the right not to be subjected to any detriment by your employer for any reason relating to your adoption leave. A detriment at work is when you are treated unfairly at work but not dismissed. For example, a detriment could be:

  • Being denied training opportunities;
  • Treating you to a harsher disciplinary process than would ordinarily be the case.

You may bring a claim on this basis if you suffer a detriment because:

  • You took or sought to take Ordinary Adoption Leave (OAL) or Additional Adoption Leave (AAL);
  • Your employer thought you were likely to take OAL or AAL;
  • You took, considered taking or refused to take a Keeping in Touch (KIT) day(s) while on AAL;
  • You failed to return from AAL where your employer:
    • failed to notify you when your AAL would end so you reasonably believed your leave was continuing; or
    • gave you less than 28 days’ notice of the date on which your AAL was to end and it was not reasonably practicable for you to return on that date.
  • You took or sought to take paid or unpaid time off to attend an adoption appointment (if detriment occurred on or after 5 April 2015); or
  • Your employer thought you were likely to take paid or unpaid time off to attend an adoption appointment (if detriment occurred on or after 5 April 2015)

See ‘Remedies’ below for remedies available for detriment

 

Q. What happens if I am dismissed because I took or wanted to take adoption leave?

If you are dismissed for a reason connected to taking adoption leave then you have a claim for automatically unfair dismissal. These reasons include:

  • You took or sought to take OAL or AAL;
  • Your employer thought you were likely to take OAL or AAL;
  • You took, considered taking or refused to take a KIT day(s) while on AAL;
  • You failed to return from AAL where your employer:
    • failed to notify you when your AAL would end so you reasonably believed your leave was continuing; or
    • gave you less than 28 days’ notice of the date on which your AAL was to end and it was not reasonably practicable for you to return on that date.

If your employer can prove that you were dismissed for a reason other than your adoption leave, your dismissal will not be deemed to be automatically unfair but you may still bring a claim for ordinary unfair dismissal.

See ‘Remedies’ below for the remedies available for unfair dismissal

 

Q. Could I bring a claim for discrimination if I am dismissed or suffer a detriment because I took or want to take adoption leave?

There has been no case law on the extent to which, if any, direct or indirect sex discrimination would apply in the case of adoption.

However, it is possible that you could have a claim for indirect sex discrimination if you are female and have been dismissed, selected for redundancy or suffered a detriment and this is related to you taking or wanting to take adoption leave. This is because primary adopters tend to be female and bear the main burden of caring responsibilities.  An employer indirectly discriminates if they:

  • apply a working provision or criteria which appears to be neutral but which puts members of one sex at a particular disadvantage;
  • you yourself are put at a particular disadvantage; and
  • the employer cannot show that the measure was a proportionate way of achieving a legitimate aim (such an aim might be linked to rewarding loyalty amongst employees, retention etc).

Whether or not you have a potential discrimination claim will be very fact-specific – we recommend you take further advice on this if you think it could apply to you.

 

Remedies

Detriment

If you have suffered a detriment as a result of taking or wanting to take adoption leave then you may make a claim in an employment tribunal. If the tribunal thinks you have suffered a detriment, they may award:

  • A declaration that your claim is well founded;
  • An award of compensation decided by the tribunal by taking into account all of the circumstances in your claim, including:
    • the breach to which your complaint relates; and
    • any loss which is attributable to the act or failure to act which infringed your rights.

Unfair dismissal

If you believe you have been unfairly dismissed because of your adoption leave then you can make a claim in an employment tribunal. The remedies for such a claim are:

  • An order for reinstatement or re-engagement.
  • A basic award.
  • A compensatory award.
  • An additional award.

You do not need to have a minimum amount of qualifying service in order to bring a claim for unfair dismissal relating to adoption leave.