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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49850
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I have a question regarding adoption pay as my employer

Customer Question

I have a question regarding adoption pay as my employer has 2 different adoption payments for those having been emplyed more than 26 weeks.
One only pays SAP and the other an enhanced pay inclusive of SAP. They have stated that company enhanced adoption pay is not available to employees who are adopting jointly with a partner where that partner does not work or works fewer than 16 hours per week. Is the company allowed to discrminate in this way as I can't find anything to back this stance.
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones : Hello, my name is Ben and it is my pleasure to assist you with your question today. How do you not meet the necessary criteria in this case?
JACUSTOMER-385u8r41- :

Hello Ben,

JACUSTOMER-385u8r41- :

with the company adooption pay scheme you need to work for the company for a minimum of 26 weeks which I have 12 years in fact. They enhanced scheme which pays out a greater amount of basic pay only applies to those employees whose partner also works a minimum of 16 hours though it does not specify they have to work for the same employer, my partner does not work. I have not found anything that justifies this difference in pay - in my opinion this appears to discriminate against me.

Ben Jones :

If you are thinking of adopting, your rights with regards to adoption pay will be split into two separate entitlements - your statutory rights and your contractual rights.

Statutory rights are governed by law and your employer cannot choose what they pay you or what you are entitled to. As long as you meet the statutory criteria you will be entitled to receive Statutory Adoption Pay (SAP).

To be entitled to SAP, an employee must meet each of the following conditions:

  • They must be a person with whom a child is, or is expected to be, placed for adoption under UK law.
  • They must have been in employed earner's employment for a continuous period of 26 weeks ending with the week in which they are notified of having been matched with the child (the relevant week).
  • They must have ceased working for the employer.
  • Their normal weekly earnings for the period of 8 weeks ending with the relevant week must not be less than the lower earnings limit in force at the end of the relevant week.
  • They must have elected to receive SAP.

In addition to SAP, the employer may elect to pay Enhanced (or contractual ) Adoption Pay (EAP). The rules to EAP are not governed by law and it would be entirely down to the employer to decide what criteria an employee must meet to become eligible.

They may set their own conditions, just as they have done in this case. Unfortunately these are not discriminatory - to be discriminatory they must place you at a disadvantage because of age, gender, race, religion, disability, etc. I see no evidence to suggest that this is discriminatory because the condition here is that the partner must work a certain number of hours per week. This cannot be linked to any of the protected characteristics above which would make this discriminatory.

JACUSTOMER-385u8r41- :

Ok, thanks. I'll have to go and speak to the HR director rather than just the HR consultant as this would mean a considerable pay cut and limit the time I'm able to spend helping the children settle in

Ben Jones :

I understand and empathise but the employer could easily not have such an enhanced policy in the forst place in which case you would still only be entitled to the SAP

JACUSTOMER-385u8r41- :

If the situation was that there was no enhanced scheme for adoption at all then at least all employees would be entitled to the same pay and this is why I feel it discriminates. The fact they also offer 2 weeks paternity leave on full pay just rubs salt into the wound and enhanced maternity pay of 100% for 26 weeks and 13 weeks SMP.

Ben Jones :

The issue here still remains the same though - the reasons for the difference in treatment is de to a factor that is not discriminatory from a legal point of view and even though that is what it may feel like, discrimination law does not give you any protection here I'm afraid. There are many examples where different policies/benefits in work may give different treatment to employees, depending on their circumstances and often it will be allowed - not everyone has to be treated the same and as long as it is not discriminatory as explained above, often that would be possible