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Adoption leave and adoption pay

Adoption leave

Sinead McCracken gives an overview of the employments rights of someone who is adopting a child.

National Adoption Week 2018 took place from 15th to 21st October and new data released from the Adoption Leadership Board has shown an increase in the number of children waiting to be adopted in the UK.

Adoption Match works to find permanent homes for children with approved adopters. The organisation reports that there are currently 1,115 children awaiting adoption and 412 families wishing to adopt.

But what are the employment rights of anyone adopting a child?

What is adoption leave?

Adoption leave is when someone takes time off because they are adopting a child or are having a child through a surrogacy arrangement. They could be eligible for both statutory adoption leave and also statutory adoption pay.  

Who is eligible for statutory adoption leave?

Adoption leave is only available to people are employed. Statutory adoption leave does not apply to the self-employed.

There is no qualifying period of prior employment required for statutory adoption leave. The right to statutory adoption leave begins from the date the individual begins their employment.

To be eligible for statutory adoption leave and statutory adoption pay, the employee must have a child matched and placed with them for adoption through an approved adoption agency.

Foster parents who are prospective adopters can also be eligible for statutory adoption leave and statutory adoption pay.

There are also adoption leave rights and entitlements for surrogate parents and people adopting a child from overseas, but those rights and entitlements are not covered by this blog.

Where a couple (whether same sex or otherwise) is adopting a child together, they need to decide which of them will be the one taking adoption leave. The other, whether they are male or female, may be entitled to take statutory paternity leave.

Qualifying conditions for statutory adoption leave

To qualify for statutory adoption leave, an individual must first satisfy the following conditions:

  • employee status – they must be an employee and not self-employed or a non-employed worker;
  • notice – they must provide the correct notice to their employer. Within seven days of being told by the adoption agency that they have been matched with a child, the individual must tell their employer the date they expect the child to be placed with them for adoption and the date on which they want their adoption leave to begin. That date can be the date on which the child is placed for adoption or a date no more than 14 days before the expected date of placement; 
  • proof of adoption – this is only required if the employer asks for it.

Within 28 days of receipt of the employee’s notice of intention to take statutory adoption leave, the employer must notify the employee of the date on which their period of statutory adoption leave will end.  

What adoption leave is the employee entitled to?

Statutory adoption leave is 52 weeks. It is made up of 26 weeks of ordinary adoption leave and 26 weeks of additional adoption leave.

As already mentioned, only one person within a couple can take adoption leave. The other partner may be able to take statutory paternity leave and the couple could be eligible for shared parental leave.

Right to paid time off for adoption appointments

The employee is entitled to receive paid time off to attend five adoption appointments after they have been matched with a child.

Their partner can also take up to 6.5 hours (which is a capped amount) of unpaid leave to attend up to two adoption placement meetings, providing they are an employee. 

Statutory adoption pay

The employee could be entitled to contractual adoption pay at a rate which is higher than the statutory amount, but this will depend on what is included in their employment contract.

Otherwise, they will be entitled to receive statutory adoption pay, provided that they satisfy the required eligibility criteria set out below:

  • the employee must have been continuously employed by their employer for at least 26 weeks ending with the week in which they are notified that they have been matched with a child (the ‘relevant week’);
  • their weekly earnings must be on average at least the lower earnings limit (currently £116 before tax) over the eight weeks ending with the relevant week.

The employee must give their employer at least 28 days’ notice of the date on which they want their adoption pay to start. The employer can ask for the notice writing.

The employer will ask for evidence of the adoption, including details of the adoption agency, the expected date of placement of the child and the date on which they were informed by the agency that the child would be placed with them.  

The employer must confirm within 28 days how much statutory adoption pay the employee will get and when it will start and stop.

If the employer considers that the individual is not eligible for statutory adoption pay, then they must issue the individual with an SAP1 form within seven days of making their decision and must also provide their reasons for their decision.

How much statutory adoption pay will the employee receive?

Statutory adoption pay is paid for up to 39 weeks. The weekly amount is:

  • 90% of the employee’s average weekly earnings for the first six weeks;
  • £145.18 or 90% of the employee’s average weekly earnings (whichever is lower) for the next 33 weeks.

The adoption pay is paid in the same way as the employee’s wages (for example weekly or monthly) and income tax and national insurance will be deducted.

What happens if the adoption ends?

If the child’s placement comes to an end during the adoption leave, the employee will have the option to remain on statutory adoption leave and pay for up to eight weeks after the end of the week in which the placement ended (unless the maximum statutory leave and pay have been used up). 

Do employment rights change during adoption leave?

The contractual rights of employees will continue during ordinary and additional adoption leave, except for their right to receive their normal pay.

The time the employee is on statutory adoption leave counts towards their period of continuous employment and they continue to accrue holiday entitlement while they are off.

The employee has the right to return to work with the same job and terms and conditions of employment after ordinary adoption leave.

After additional adoption leave, the employee has the right to return to the same job, but if that is not reasonably practicable, then their employer must offer them suitable and appropriate alternative employment. That employment must be on terms and conditions of employment which are not less favourable than those which would have applied if they had not been absent.

The employee is protected against detrimental treatment or dismissal for reasons relating to statutory adoption leave or statutory adoption pay.

Adoption leave: a complex area

The laws relating to statutory adoption leave and statutory adoption pay are complex and this blog is only a brief summary and is not a fully comprehensive statement of the law.

For detailed advice and guidance on this tricky area, please contact the Burnetts employment and HR team here.

Published: Friday 12th October 2018
Categorised: Commercial Client, Private Client, Cases involving children, Employment, HR, Legal Services in Newcastle, Penrith, West Cumbria

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