The Paternity and Adoption Leave Regulations 2002

Explanatory Note

(This note is not part of the Regulations)

These Regulations relate to the new rights to paternity and adoption leave provided for in the Employment Act 2002. The relevant provisions are incorporated by that Act into the Employment Rights Act 1996 (“the 1996 Act”).

The right to take paternity leave is conferred by regulation 4 in connection with the birth of a child, and by regulation 8 in connection with the adoption of a child. In each case, the right is available to employees with 26 weeks' qualifying service, and is exercisable for the purpose of caring for the child or supporting the child’s mother (in the case of a birth) or adopter (in the case of an adoption).

Regulations 5 and 9 give an employee the option of taking either one week’s leave or two consecutive weeks' leave, and also options concerning the date on which the employee’s period of leave will begin; however, leave may only be taken within 56 days of the child’s birth or placement with the adopter. Regulations 6 and 10 require an employee to notify his employer of his intention to take leave and of his choices in respect of the options available.

Regulation 12 elaborates new section 80C of the 1996 Act, by providing that an employee is entitled during his absence on leave to the benefit of all of his terms and conditions of employment apart from the right to remuneration (excluded by section 80C(5)(b)); also that the employee is subject to all of the obligations under those terms and conditions except in so far as they are inconsistent with the right to leave (the exception appears in section 80C(1)(b)). Regulations 13 and 14 provide for an employee’s right to return to work after taking leave, distinguishing the case where the leave was an isolated period of absence from the case where it followed another period of statutory leave.

New sections 75A and 75B of the 1996 Act confer rights to ordinary and additional adoption leave which are analogous to the right to ordinary and additional maternity leave conferred by sections 71 and 73 of that Act.

Regulation 15 sets out the conditions of entitlement to ordinary adoption leave. An employee must have 26 weeks' qualifying service, must have been matched with a child by an adoption agency, and must have agreed that the child should be placed with him for adoption. Only one person may take adoption leave in respect of a child at any time; accordingly, where a couple propose to adopt a child jointly, one may take adoption leave but the other may only take paternity leave. Regulation 16 enables an employee to choose when his period of leave should begin. Regulation 17 imposes notice requirements similar to those applicable in relation to paternity leave.

Ordinary adoption leave may be taken for a period of 26 weeks (regulation 18), and an employee who has completed a period of ordinary adoption leave is eligible for 26 weeks' additional adoption leave (regulation 20). During ordinary adoption leave, an employee’s terms and conditions of employment continue to apply to the same extent as during paternity leave (regulation 19). During additional adoption leave only certain terms and conditions continue to apply. These are listed in regulation 21; the list is the same as that prescribed by the Maternity and Parental Leave etc. Regulations 1999 in relation to additional maternity leave.

Regulations 22–27 contain provisions applicable in relation to both ordinary and additional adoption leave. Regulation 22 deals with cases where the child is not placed with the employee or the placement ends; in such cases, the employee’s entitlement to leave comes to an end after a period of eight weeks. Regulations 23 and 24 deal with cases where an employee becomes redundant or is dismissed during an adoption leave period. Regulation 25 requires an employee to notify his employer if he intends to return to work before his entitlement to both ordinary and additional adoption leave is exhausted. Regulations 26 and 27 deal with the employee’s right to return: an employee has the right to return to the same job after an isolated period of ordinary adoption leave, and the right to return to the same or a similar job after a period of additional adoption leave. Provision is made for adoption leave taken after other periods of statutory leave.

Regulations 28–31 contain provisions applicable in relation to both paternity leave and adoption leave. As in the case of employees entitled to maternity or parental leave under the 1996 Act, an employee entitled to paternity or adoption leave is protected against detriment or dismissal attributable to the fact that he took or sought to take such leave. The same protection is available where an employee fails to return after a period of additional adoption leave, if his employer has not notified him of the date on which that period would end.

A Regulatory Impact Assessment of the costs and benefits of these regulations to business has been placed in the libraries of both Houses of Parliament. Copies are available to the public from the Employment Relations Directorate, Department of Trade and Industry, 1 Victoria Street, London SW1H 0ET; the Assessment is also accessible at the Directorate’s website www.dti.gov.uk/er..