Continuous employment: change of employer
The general rules relating to continuity of employment are in:
Regulation 14 of the SMP (General) Regulations 1986
Regulation 14 of the SMP (General) Regulations (Northern Ireland) 1987
Schedule 1 of the Contract of Employment and Redundancy Payments (Northern Ireland) Act 1965.
Regulation 36 of the Statutory Paternity and Statutory Adoption Pay (General) Regulations 2002
They provide that a change of employer does not break continuity of employment if:
- all or part of the business is transferred, see SPM220200
- one corporate body takes over from another as the employer by or under an Act of Parliament
- the employer dies and their personal representatives or trustees keep the employee on in employment
- there is a change in partners, personal representatives or trustees who employ the employee
- the employee moves from one employer to another where at the time of the move the two employers are associated employers. That is, if one is a company of which the other (directly or indirectly) has control or if both are companies of which a third person (directly or indirectly) has control, or
- a teacher in a school funded by a Local Education Authority moves to another school funded by the same authority (including Local Authority funded schools where the governors of that school rather than the Local Education Authority are the teacher’s employer), or
- when a NHS Trust is established and the employee moves to that trust from the originating Health Authority. However, when an employee changes from one authority/trust to another during the 26 weeks employment qualifying rules, the employee will not satisfy the continuous employment rules unless it is for the same authority/trust, see SPM190700
Adoption from abroad: change of employer before the start of the APP
If the employee starts work for a new employer before they are sent Official Notification, they can still complete 26 weeks continuous employment with the new employer and qualify for SAP and adoption leave from the new employer.
If the employee starts work for a new employer after they are sent Official Notification there are special rules about which employer will be liable to pay the SAP.
The employee hadn’t completed 26 weeks continuous employment with the old employer.
They need to satisfy the 26 week continuous employment test with the new employer before the child enters the UK to qualify for SAP and adoption leave from the new employer.
The employee had completed 26 weeks continuous employment with the old employer
The old employer remains liable to pay SAP if the APP starts within 6 months of the date the employee’s employment with them ended so the employee must still give them evidence of entitlement and the appropriate notice of when they want the SAP to start. However, the new employer is not required to allow them time off work and the employee will not be entitled to SAP in any week they work for the new employer. This means that they must tell their previous employer if they work for the new employer.
The adopter doesn’t start with a new employer within 6 months of leaving the old employer
Liability transfers to the HMRC from six months after the contract of employment with the old employer ended until the employee re-qualifies for SAP from a new employer. HMRC will remain liable to pay the SAP if, when the child enters the UK, the adopter:
- is not working for another employer, or
- is working for a new employer but has not re-qualified for SAP by completing 26 weeks continuous employment with them.
If HMRC are liable to pay the SAP the new employer has no obligation to allow time off work and the employee will not be entitled to SAP in any week they work for a new employer. The employee must tell the HMRC if they work for the new employer.
Once the employee has completed 26 weeks continuous employment with the new employer that employer becomes liable to pay any SAP and the employee is entitled to statutory adoption leave.