The Paternity and Adoption Leave Regulations 2002

Statutory Instrument 2002 No. 2788

The Paternity and Adoption Leave Regulations 2002

Statutory Instruments printed from this website are printed under the superintendence and authority of the Controller of HMSO being the Queen's Printer of Acts of Parliament.

The legislation contained on this web site is subject to Crown Copyright protection. It may be reproduced free of charge provided that it is reproduced accurately and that the source and copyright status of the material is made evident to users.

It should be noted that the right to reproduce the text of Statutory Instruments does not extend to the Queen's Printer imprints which should be removed from any copies of the Statutory Instrument which are issued or made available to the public. This includes reproduction of the Statutory Instrument on the Internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document.

The text of this Internet version of the Statutory Instrument which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text as it was Made. A print version is also available and is published by The Stationery Office Limited as the The Paternity and Adoption Leave Regulations 2002, ISBN 0 11 042972 9. The print version may be purchased by clicking here. Braille copies of this Statutory Instrument can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail:customer.services@tso.co.uk.

Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.

To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.

STATUTORY INSTRUMENTS

2002 No. 2788
TERMS AND CONDITIONS OF EMPLOYMENT
The Paternity and Adoption Leave Regulations 2002

	Made	11th November 2002
	Coming into force	8th December 2002

Whereas a draft of the following Regulations was laid before Parliament in accordance with section 236(3) of the Employment Rights Act 1996[1] and approved by a resolution of each House of Parliament:

     Now, therefore, the Secretary of State, in exercise of the powers conferred on her by sections 47C(2), 75A(1) to (3), (6) and (7), 75B(1), (2), (4) and (8), 75C(1) and (2), 75D(1), 80A(1), (2) and (5), 80B(1), (2) and (5), 80C(1) and (6), 80D(1), 80E and 99(1) of that Act[2], hereby makes the following Regulations: -

PART 1
GENERAL
Citation and commencement
     1. These Regulations may be cited as the Paternity and Adoption Leave Regulations 2002 and shall come into force on 8th December 2002.

Interpretation
     2. - (1) In these Regulations -

"the 1996 Act" means the Employment Rights Act 1996;

"additional adoption leave" means leave under section 75B of the 1996 Act;

"additional maternity leave" means leave under section 73 of the 1996 Act;

"adopter", in relation to a child, means a person who has been matched with the child for adoption, or, in a case where two people have been matched jointly, whichever of them has elected to be the child's adopter for the purposes of these Regulations;

"adoption agency" has the meaning given, in relation to England and Wales, by section 1(4) of the Adoption Act 1976[

"adoption leave" means ordinary or additional adoption leave;

"child" means a person who is, or when placed with an adopter for adoption was, under the age of 18;

"contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;

"employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment;

"employer" means the person by whom an employee is (or, where the employment has ceased, was) employed;

"expected week", in relation to the birth of a child, means the week, beginning with midnight between Saturday and Sunday, in which it is expected that the child will be born;

"ordinary adoption leave" means leave under section 75A of the 1996 Act;

"partner", in relation to a child's mother or adopter, means a person (whether of a different sex or the same sex) who lives with the mother or adopter and the child in an enduring family relationship but is not a relative of the mother or adopter of a kind specified in paragraph (2);

"paternity leave" means leave under regulation 4 or regulation 8 of these Regulations;

"statutory leave" means leave provided for in Part 8 of the 1996 Act.

(2) The relatives of a child's mother or adopter referred to in the definition of "partner" in paragraph (1) are the mother's or adopter's parent, grandparent, sister, brother, aunt or uncle.

(3) References to relationships in paragraph (2) -

but do not include any other adoptive relationships.

(4) For the purposes of these Regulations -

(5) A reference in any provision of these Regulations to a period of continuous employment is to a period computed in accordance with Chapter 1 of Part 14 of the 1996 Act, as if that provision were a provision of that Act.

(6) For the purposes of these Regulations, any two employers shall be treated as associated if -

and "associated employer" shall be construed accordingly.

Application
3. - (1) The provisions relating to paternity leave under regulation 4 below have effect only in relation to children -

(a) born on or after 6th April 2003, or

(b) whose expected week of birth begins on or after that date.

(2) The provisions relating to paternity leave under regulation 8 and adoption leave under regulation 15 below have effect only in relation to children -

(a) matched with a person who is notified of having been matched on or after 6th April 2003, or

(b) placed for adoption on or after that date.

(3) Regulation 28 (protection from detriment) has effect only in relation to an act or failure to act which takes place on or after 8th December 2002.

(4) For the purposes of paragraph (3) -

(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period, and

(b) a failure to act is to be treated as done when it was decided on.

(5) For the purposes of paragraph (4), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act -

(a) when he does an act inconsistent with doing the failed act, or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

(6) Regulation 29 (unfair dismissal) has effect only in relation to dismissals where the effective date of termination (within the meaning of section 97 of the 1996 Act) falls on or after 8th December 2002.

PART 2
PATERNITY LEAVE
Entitlement to paternity leave: birth
4. - (1) An employee is entitled to be absent from work for the purpose of caring for a child or supporting the child's mother if he -

(2) The conditions referred to in paragraph (1) are that the employee -

(3) An employee shall be treated as having satisfied the condition in paragraph (2)(a) on the date of the child's birth notwithstanding the fact that he has not then been continuously employed for a period of not less than 26 weeks, where -

    (4) An employee shall be treated as having satisfied the condition in paragraph (2)(b)(ii) if he would have satisfied it but for the fact that the child's mother has died.

    (5) An employee shall be treated as having satisfied the condition in paragraph (2)(c) if he would have satisfied it but for the fact that the child was stillborn after 24 weeks of pregnancy or has died.

    (6) An employee's entitlement to leave under this regulation shall not be affected by the birth, or expected birth, of more than one child as a result of the same pregnancy.

Options in respect of leave under regulation 4
     5. - (1) An employee may choose to take either one week's leave or two consecutive weeks' leave in respect of a child under regulation 4.

    (2) The leave may only be taken during the period which begins with the date on which the child is born and ends -

(a) except in the case referred to in sub-paragraph (b), 56 days after that date;

(b) in a case where the child is born before the first day of the expected week of its birth, 56 days after that day.

(3) Subject to paragraph (2) and, where applicable, paragraph (4), an employee may choose to begin his period of leave on -

(a) the date on which the child is born;

(b) the date falling such number of days after the date on which the child is born as the employee may specify in a notice under regulation 6, or

(c) a predetermined date, specified in a notice under that regulation, which is later than the first day of the expected week of the child's birth.

(4) In a case where the leave is in respect of a child whose expected week of birth begins before 6th April 2003, an employee may choose to begin a period of leave only on a predetermined date, specified in a notice under regulation 6, which is at least 28 days after the date on which that notice is given.

Notice and evidential requirements for leave under regulation 4
6. - (1) An employee must give his employer notice of his intention to take leave in respect of a child under regulation 4, specifying -

(a) the expected week of the child's birth;

(b) the length of the period of leave that, in accordance with regulation 5(1), the employee has chosen to take, and

(c) the date on which, in accordance with regulation 5(3) or (4), the employee has chosen that his period of leave should begin.

(2) The notice provided for in paragraph (1) must be given to the employer -

(a) in or before the 15th week before the expected week of the child's birth, or

(b) in a case where it was not reasonably practicable for the employee to give the notice in accordance with sub-paragraph (a), as soon as is reasonably practicable.

(3) Where the employer requests it, an employee must also give his employer a declaration, signed by the employee, to the effect that the purpose of his absence from work will be that specified in regulation 4(1) and that he satisfies the conditions of entitlement in regulation 4(2)(b) and (c).

(4) An employee who has given notice under paragraph (1) may vary the date he has chosen as the date on which his period of leave will begin, subject to paragraph (5) and provided that he gives his employer notice of the variation -

(a) where the variation is to provide for the employee's period of leave to begin on the date on which the child is born, at least 28 days before the first day of the expected week of the child's birth;

(b) where the variation is to provide for the employee's period of leave to begin on a date that is a specified number of days (or a different specified number of days) after the date on which the child is born, at least 28 days before the date falling that number of days after the first day of the expected week of the child's birth;

(c) where the variation is to provide for the employee's period of leave to begin on a predetermined date (or a different predetermined date), at least 28 days before that date,

or, if it is not reasonably practicable to give the notice at least 28 days before whichever day or date is relevant, as soon as is reasonably practicable.

(5) In a case where regulation 5(4) applies, an employee may only vary the date which he has chosen as the date on which his period of leave will begin by substituting a different predetermined date.

(6) In a case where -

(a) the employee has chosen to begin his period of leave on a particular predetermined date, and

(b) the child is not born on or before that date,

the employee must vary his choice of date, by substituting a later predetermined date or (except in a case where regulation 5(4) applies) exercising an alternative option under regulation 5(3), and give his employer notice of the variation as soon as is reasonably practicable.

    (7) An employee must give his employer a further notice, as soon as is reasonably practicable after the child's birth, of the date on which the child was born.

    (8) Notice under paragraph (1), (4), (6) or (7) shall be given in writing, if the employer so requests.

Commencement of leave under regulation 4
     7. - (1) Except in the case referred to in paragraph (2), an employee's period of paternity leave under regulation 4 begins on the date specified in his notice under regulation 6(1), or, where he has varied his choice of date under regulation 6(4) or (6), on the date specified in his notice under that provision (or the last such notice if he has varied his choice more than once).

    (2) In a case where -

(a) the employee has chosen to begin his period of leave on the date on which the child is born, and

(b) he is at work on that date,

the employee's period of leave begins on the day after that date.

Entitlement to paternity leave: adoption
8. - (1) An employee is entitled to be absent from work for the purpose of caring for a child or supporting the child's adopter if he -

(a) satisfies the conditions specified in paragraph (2), and

(b) has complied with the notice requirements in regulation 10 and, where applicable, the evidential requirements in that regulation.

(2) The conditions referred to in paragraph (1) are that the employee -

(a) has been continuously employed for a period of not less than 26 weeks ending with the week in which the child's adopter is notified of having been matched with the child;

(b) is either married to or the partner of the child's adopter, and

(c) has, or expects to have, the main responsibility (apart from the responsibility of the adopter) for the upbringing of the child.

    (3) In paragraph (2)(a), "week" means the period of seven days beginning with Sunday.

    (4) An employee shall be treated as having satisfied the condition in paragraph (2)(b) if he would have satisfied it but for the fact that the child's adopter died during the child's placement.

    (5) An employee shall be treated as having satisfied the condition in paragraph (2)(c) if he would have satisfied it but for the fact that the child's placement with the adopter has ended.

    (6) An employee's entitlement to leave under this regulation shall not be affected by the placement for adoption of more than one child as part of the same arrangement.

Options in respect of leave under regulation 8
     9. - (1) An employee may choose to take either one week's leave or two consecutive weeks' leave in respect of a child under regulation 8.

    (2) The leave may only be taken during the period of 56 days beginning with the date on which the child is placed with the adopter.

    (3) Subject to paragraph (2) and, where applicable, paragraph (4), an employee may choose to begin a period of leave under regulation 8 on -

(a) the date on which the child is placed with the adopter;

(b) the date falling such number of days after the date on which the child is placed with the adopter as the employee may specify in a notice under regulation 10, or

(c) a predetermined date, specified in a notice under that regulation, which is later than the date on which the child is expected to be placed with the adopter.

(4) In a case where the adopter was notified of having been matched with the child before 6th April 2003, the employee may choose to begin a period of leave only on a predetermined date, specified in a notice under regulation 10, which is at least 28 days after the date on which that notice is given.

Notice and evidential requirements for leave under regulation 8
10. - (1) An employee must give his employer notice of his intention to take leave in respect of a child under regulation 8, specifying -

(a) the date on which the adopter was notified of having been matched with the child;

(b) the date on which the child is expected to be placed with the adopter;

(c) the length of the period of leave that, in accordance with regulation 9(1), the employee has chosen to take, and

(d) the date on which, in accordance with regulation 9(3) or (4), the employee has chosen that his period of leave should begin.

(2) The notice provided for in paragraph (1) must be given to the employer -

(a) no more than seven days after the date on which the adopter is notified of having been matched with the child, or

(b) in a case where it was not reasonably practicable for the employee to give notice in accordance with sub-paragraph (a), as soon as is reasonably practicable.

(3) Where the employer requests it, an employee must also give his employer a declaration, signed by the employee, to the effect that the purpose of his absence from work will be that specified in regulation 8(1) and that he satisfies the conditions of entitlement in regulation 8(2)(b) and (c).

(4) An employee who has given notice under paragraph (1) may vary the date he has chosen as the date on which his period of leave will begin, subject to paragraph (5) and provided that he gives his employer notice of the variation -

(a) where the variation is to provide for the employee's period of leave to begin on the date on which the child is placed with the adopter, at least 28 days before the date specified in the employee's notice under paragraph (1) as the date on which the child is expected to be placed with the adopter;

(b) where the variation is to provide for the employee's period of leave to begin on a date that is a specified number of days (or a different specified number of days) after the date on which the child is placed with the adopter, at least 28 days before the date falling that number of days after the date specified in the employee's notice under paragraph (1) as the date on which the child is expected to be placed with the adopter;

(c) where the variation is to provide for the employee's period of leave to begin on a predetermined date, at least 28 days before that date,

or, if it is not reasonably practicable to give the notice at least 28 days before whichever date is relevant, as soon as is reasonably practicable.

(5) In a case where regulation 9(4) applies, an employee may only vary the date which he has chosen as the date on which his period of leave will begin by substituting a different predetermined date.

(6) In a case where -

(a) the employee has chosen to begin his period of leave on a particular predetermined date, and

(b) the child is not placed with the adopter on or before that date,

the employee must vary his choice of date, by substituting a later predetermined date or (except in a case where regulation 9(4) applies) exercising an alternative option under regulation 9(3), and give his employer notice of the variation as soon as is reasonably practicable.

    (7) An employee must give his employer a further notice, as soon as is reasonably practicable after the child's placement, of the date on which the child was placed.

    (8) Notice under paragraph (1), (4), (6) or (7) shall be given in writing, if the employer so requests.

Commencement of leave under regulation 8
     11. - (1) Except in the case referred to in paragraph (2), an employee's period of paternity leave under regulation 8 begins on the date specified in his notice under regulation 10(1), or, where he has varied his choice of date under regulation 10(4) or (6), on the date specified in his notice under that provision (or the last such date if he has varied his choice more than once).

    (2) In a case where -

(a) the employee has chosen to begin his period of leave on the date on which the child is placed with the adopter, and

(b) he is at work on that date,

the employee's period of leave begins on the day after that date.

Application of terms and conditions during paternity leave
12. - (1) An employee who takes paternity leave -

(a) is entitled, during the period of leave, to the benefit of all of the terms and conditions of employment which would have applied if he had not been absent, and

(b) is bound, during that period, by any obligations arising under those terms and conditions, subject only to the exception in section 80C(1)(b) of the 1996 Act[

    (2) In paragraph (1)(a), "terms and conditions of employment" has the meaning given by section 80C(5) of the 1996 Act, and accordingly does not include terms and conditions about remuneration.

    (3) For the purposes of section 80C of the 1996 Act, only sums payable to an employee by way of wages or salary are to be treated as remuneration.

Right to return after paternity leave
     13. - (1) An employee who returns to work after a period of paternity leave which was -

(a) an isolated period of leave, or

(b) the last of two or more consecutive periods of statutory leave, which did not include any period of additional maternity leave or additional adoption leave or a period of parental leave of more than four weeks,

is entitled to return from leave to the job in which he was employed before his absence.

(2) An employee who returns to work after a period of paternity leave not falling within the description in paragraph (1)(a) or (b) above is entitled to return from leave to the job in which he was employed before his absence, or, if it is not reasonably practicable for the employer to permit him to return to that job, to another job which is both suitable for him and appropriate for him to do in the circumstances.

(3) The reference in paragraphs (1) and (2) to the job in which an employee was employed before his absence is a reference to the job in which he was employed -

(a) if his return is from an isolated period of paternity leave, immediately before that period began;

(b) if his return is from consecutive periods of statutory leave, immediately before the first such period.

Incidents of the right to return after paternity leave
14. - (1) An employee's right to return under regulation 13 is a right to return -

(a) with his seniority, pension rights and similar rights -

(b) on terms and conditions not less favourable than those which would have applied if he had not been absent.

(2) The provision in paragraph (1)(a)(i) concerning the treatment of periods of additional maternity leave or additional adoption leave is subject to the requirements of paragraphs 5 and 6 of Schedule 5 to the Social Security Act 1989[9] (equal treatment under pension schemes: maternity absence and family leave).

(3) The provisions in paragraph (1)(a)(ii) and (b) for an employee to be treated as if he had not been absent refer to his absence -

PART 3
ADOPTION LEAVE
Entitlement to ordinary adoption leave
15. - (1) An employee is entitled to ordinary adoption leave in respect of a child if he -

(2) The conditions referred to in paragraph (1) are that the employee -

    (3) In paragraph (2)(b), "week" means the period of seven days beginning with Sunday.

    (4) An employee's entitlement to leave under this regulation shall not be affected by the placement for adoption of more than one child as part of the same arrangement.

Options in respect of ordinary adoption leave
     16. - (1) Except in the case referred to in paragraph (2), an employee may choose to begin a period of ordinary adoption leave on -

(a) the date on which the child is placed with him for adoption, or

(b) a predetermined date, specified in a notice under regulation 17, which is no more than 14 days before the date on which the child is expected to be placed with the employee and no later than that date.

(2) In a case where the employee was notified of having been matched with the child before 6th April 2003, the employee may choose to begin a period of leave only on a predetermined date, specified in a notice under regulation 17, which is after 6th April 2003 and at least 28 days after the date on which that notice is given.

Notice and evidential requirements for ordinary adoption leave
17. - (1) An employee must give his employer notice of his intention to take ordinary adoption leave in respect of a child, specifying -

(a) the date on which the child is expected to be placed with him for adoption, and

(b) the date on which, in accordance with regulation 16(1) or (2), the employee has chosen that his period of leave should begin.

(2) The notice provided for in paragraph (1) must be given to the employer -

(a) no more than seven days after the date on which the employee is notified of having been matched with the child for the purposes of adoption, or

(b) in a case where it was not reasonably practicable for the employee to give notice in accordance with sub-paragraph (a), as soon as is reasonably practicable.

(3) Where the employer requests it, an employee must also provide his employer with evidence, in the form of one or more documents issued by the adoption agency that matched the employee with the child, of -

(a) the name and address of the agency;

(b) the name and date of birth of the child;

(c) the date on which the employee was notified that he had been matched with the child, and

(d) the date on which the agency expects to place the child with the employee.

(4) An employee who has given notice under paragraph (1) may vary the date he has chosen as the date on which his period of leave will begin, subject to paragraph (5) and provided that he gives his employer notice of the variation -

(a) where the variation is to provide for the employee's period of leave to begin on the date on which the child is placed with him for adoption, at least 28 days before the date specified in his notice under paragraph (1) as the date on which the child is expected to be placed with him;

(b) where the variation is to provide for the employee's period of leave to begin on a predetermined date (or a different predetermined date), at least 28 days before that date,

or, if it is not reasonably practicable to give the notice 28 days before whichever date is relevant, as soon as is reasonably practicable.

    (5) In a case where regulation 16(2) applies, an employee may only vary the date which he has chosen as the date on which his period of leave will begin by substituting a different predetermined date.

    (6) Notice under paragraph (1) or (4) shall be given in writing, if the employer so requests.

    (7) An employer who is given notice under paragraph (1) or (4) of the date on which an employee has chosen that his period of ordinary adoption leave should begin shall notify the employee, within 28 days of his receipt of the notice, of the date on which the period of additional adoption leave to which the employee will be entitled (if he satisfies the conditions in regulation 20(1)) after his period of ordinary adoption leave ends.

    (8) The notification provided for in paragraph (7) shall be given to the employee -

(a) where the employer is given notice under paragraph (1), within 28 days of the date on which he received that notice;

(b) where the employer is given notice under paragraph (4), within 28 days of the date on which the employee's ordinary adoption leave period began.

Duration and commencement of ordinary adoption leave
     18. - (1) Subject to regulations 22 and 24, an employee's ordinary adoption leave period is a period of 26 weeks.

    (2) Except in the case referred to in paragraph (3), an employee's ordinary adoption leave period begins on the date specified in his notice under regulation 17(1), or, where he has varied his choice of date under regulation 17(4), on the date specified in his notice under that provision (or the last such date if he has varied his choice more than once).

    (3) In a case where -

(a) the employee has chosen to begin his period of leave on the date on which the child is placed with him, and

(b) he is at work on that date,

the employee's period of leave begins on the day after that date.

Application of terms and conditions during ordinary adoption leave
19. - (1) An employee who takes ordinary adoption leave -

    (2) In paragraph (1)(a), "terms and conditions of employment" has the meaning given by section 75A(4) of the 1996 Act, and accordingly does not include terms and conditions about remuneration.

    (3) For the purposes of section 75A of the 1996 Act, only sums payable to an employee by way of wages or salary are to be treated as remuneration.

Additional adoption leave: entitlement, duration and commencement
     20. - (1) An employee is entitled to additional adoption leave in respect of a child if -

(a) the child was placed with him for adoption,

(b) he took ordinary adoption leave in respect of the child, and

(c) his ordinary adoption leave period did not end prematurely under regulation 22(2)(a) or 24.

(2) Subject to regulations 22 and 24, an employee's additional adoption leave period is a period of 26 weeks beginning on the day after the last day of his ordinary adoption leave period.

Application of terms and conditions during additional adoption leave
21. An employee who takes additional adoption leave -

(a) is entitled, during the period of leave, to the benefit of his employer's implied obligation to him of trust and confidence and of any terms and conditions of his employment relating to -

(b) is bound, during that period, by his implied obligation to his employer of good faith and of any terms and conditions of his employment relating to -

Disrupted placement in the course of adoption leave
22. - (1) This regulation applies where -

(a) an employee has begun a period of adoption leave in respect of a child before the placement of the child with him, and the employee is subsequently notified that the placement will not be made, or

(b) during an employee's period of adoption leave in respect of a child placed with him -

(2) Subject to regulation 24, in a case where this regulation applies -

(a) except in the circumstances referred to in sub-paragraphs (b) and (c), the employee's adoption leave period ends eight weeks after the end of the relevant week specified in paragraph (3);

(b) where the employee is taking ordinary adoption leave and the period of 26 weeks provided for in regulation 18 ends within eight weeks of the end of the relevant week -

(c) where the employee is taking additional adoption leave and the period of 26 weeks provided for in regulation 20 ends within eight weeks of the end of the relevant week, the employee's additional adoption leave period ends on the expiry of the 26-week period.

(3) The relevant week referred to in paragraph (2) is -

(a) in a case falling within paragraph (1)(a), the week during which the person with whom the child was to be placed for adoption is notified that the placement will not be made;

(b) in a case falling within paragraph (1)(b)(i), the week during which the child dies;

(c) in a case falling within paragraph (1)(b)(ii), the week during which the child is returned.

    (4) In paragraph (3), "week" means the period of seven days beginning with Sunday.

Redundancy during adoption leave
     23. - (1) This regulation applies where, during an employee's ordinary or additional adoption leave period, it is not practicable by reason of redundancy for his employer to continue to employ him under his existing contract of employment.

    (2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of his employment under his existing contract) alternative employment with his employer or his employer's successor, or an associated employer, under a new contract of employment which complies with paragraph (3) and takes effect immediately on the ending of his employment under the previous contract.

    (3) The new contract of employment must be such that -

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for him to do in the circumstances, and

(b) its provisions as to the capacity and place in which he is to be employed, and as to the other terms and conditions of his employment, are not substantially less favourable to him than if he had continued to be employed under the previous contract.

is entitled to return from leave to the job in which he was employed before his absence.

(2) An employee who returns to work after -

(a) a period of additional adoption leave, whether or not preceded by another period of statutory leave, or

(b) a period of ordinary adoption leave not falling within the description in paragraph (1)(a) or (b) above,

is entitled to return from leave to the job in which he was employed before his absence, or, if it is not reasonably practicable for the employer to permit him to return to that job, to another job which is both suitable for him and appropriate for him to do in the circumstances.

(3) The reference in paragraphs (1) and (2) to the job in which an employee was employed before his absence is a reference to the job in which he was employed -

(a) if his return is from an isolated period of adoption leave, immediately before that period began;

(b) if his return is from consecutive periods of statutory leave, immediately before the first such period.

(4) This regulation does not apply where regulation 23 applies.

Incidents of the right to return from adoption leave
27. - (1) An employee's right to return under regulation 26 is to return -

(a) with his seniority, pension rights and similar rights -

(b) on terms and conditions as to remuneration not less favourable than those which would have been applied to him if he had not been absent.

(2) The provision in paragraph (1)(a)(i) concerning the treatment of periods of additional adoption leave or additional maternity leave is subject to the requirements of paragraphs 5 and 6 of Schedule 5 to the Social Security Act 1989[11] (equal treatment under pension schemes: maternity absence and family leave).

(3) The provisions in paragraph (1)(a)(ii) and (b) for an employee to be treated as if he had not been absent refer to his absence -

PART 4
PROVISIONS APPLICABLE IN RELATION TO BOTH PATERNITY AND ADOPTION LEAVE
Protection from detriment
28. - (1) An employee is entitled under section 47C of the 1996 Act[12] not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer because -

(2) Paragraph (1) does not apply where the detriment in question amounts to dismissal within the meaning of Part 10 of the 1996 Act.

Unfair dismissal
29. - (1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purpose of Part 10 of that Act as unfairly dismissed if -

(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or

(b) the reason or principal reason for the dismissal is that the employee is redundant, and regulation 23 has not been complied with.

(2) An employee who is dismissed shall also be regarded for the purposes of Part 10 of the 1996 Act as unfairly dismissed if -

(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant;

(b) it is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who had positions similar to that held by the employee and who have not been dismissed by the employer, and

(c) it is shown that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was a reason of a kind specified in paragraph (3).

(3) The kinds of reason referred to in paragraph (1) and (2) are reasons connected with the fact that -

(a) the employee took, or sought to take, paternity or adoption leave;

(b) the employer believed that the employee was likely to take ordinary or additional adoption leave, or

(c) the employee failed to return after a period of additional adoption leave in a case where -

(4) Paragraph (1) does not apply in relation to an employee who took adoption leave if -

(a) immediately before the end of his additional adoption leave period (or, if it ends by reason of dismissal, immediately before the dismissal) the number of employees employed by his employer, added to the number employed by any associated employer of his employer, did not exceed five, and

(b) it is not reasonably practicable for the employer (who may be the same employer or a successor of his) to permit the employee to return to a job which is both suitable for the employee and appropriate for him to do in the circumstances or for an associated employer to offer the employee a job of that kind.

(5) Paragraph (1) does not apply in relation to an employee if -

(a) it is not reasonably practicable for a reason other than redundancy for the employer (who may be the same employer or a successor of his) to permit the employee to return to a job which is both suitable for the employee and appropriate for him to do in the circumstances;

(b) an associated employer offers the employee a job of that kind, and

(c) the employee accepts or unreasonably refuses that offer.

(6) Where, on a complaint of unfair dismissal, any question arises as to whether the operation of paragraph (1) is excluded by the provisions of paragraph (4) or (5), it is for the employer to show that the provisions in question were satisfied in relation to the complainant.

Contractual rights to paternity or adoption leave
30. - (1) This regulation applies where an employee is entitled to -

(a) paternity leave,

(b) ordinary adoption leave, or

(c) additional adoption leave,