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Adoption Leave and Pay

This employment guide is a summary of your employees’ rights to adoption leave and pay.

Introduction

Eligible employees who have been ‘matched’ with a child may take up to 52 weeks adoption leave. They may also be entitled to 39 weeks of statutory adoption pay.

If a couple jointly adopt a child, one may take adoption leave and the other parent may be able to take paternity leave or shared parental leave.

Adoption leave and adoption pay may be available to:

  • Individuals who adopt.
  • One member of a couple where the couple adopt jointly (the couple may choose which partner takes adoption leave).

Eligibility

To qualify for adoption leave, an employee must be newly matched with a child for adoption by an approved adoption agency.

Your employee will not qualify for statutory adoption leave or adoption pay if he or she:

  • Arranges a private adoption.
  • Becomes a special guardian or foster parent.
  • Adopts a step-child.

If your employee is adopting a child from overseas then different rules apply; please contact our advisors for further advice on this. Call us on 01455 444 222.

Key rights

Adopters are entitled to:

  • 52 weeks statutory adoption leave split into 26 weeks ‘ordinary’ adoption leave and 26 weeks ‘additional’ adoption leave.
  • Statutory adoption pay for up to 39 weeks plus up to 13 weeks unpaid leave.
  • Paid time off to attend up to five adoption appointments once matched with a child.
  • The right to return to the same job.
  • Protection from ‘detriment’ (eg, no adverse changes to terms and conditions of employment) or dismissal relating to adoption leave.
  • Priority to be offered suitable alternative employment in redundancy.

Taking adoption leave

Adopters can choose to start their leave:

  • From the date of the child’s placement (whether this is earlier or later than expected).

Or

  • From a fixed date, which can be up to 14 days before the expected date of placement.

Leave can start on any day of the week.

Only one period of leave will be available even if more than one child is placed for adoption as part of the same arrangement.

If the child’s placement ends during the adoption leave period, the adopter will be able to continue adoption leave for up to eight weeks after the end of the placement.

Keeping in touch days

You may agree with your employee that up to ten paid days of work or training is undertaken without bringing the adoption leave or paternity leave to an end. These ‘keeping in touch’ days are intended to maintain contact with your employee during the period of leave.

If the employee does have some ‘keeping in touch’ days, the adoption leave or paternity leave period is not extended to take this into account.

Statutory adoption pay

During their adoption leave most adopters will be entitled to statutory adoption pay (SAP) from you. This will only apply if your employee:

  • Has worked for you for at least 26 weeks by the week he or she was matched with a child.
  • Earns at least the current lower earnings limit for National Insurance contributions. Our advisors will be able to tell you what this figure is currently.
  • Has given appropriate notice (see below).
  • Has provided proof of adoption (see below).

You will have to pay SAP for up to 39 weeks.

  • The first six weeks are paid at 90 per cent of average weekly earnings. After that, the rate of SAP will be the same as the standard rate of statutory maternity pay. If you are uncertain as to the current statutory pay rates just give us a call on 01455 444 222 or contact us.

Adopters whose average weekly earnings are below the lower earnings limit for National Insurance contributions will not qualify for SAP. The Benefits Agency will be able to advise the adopter on available benefits.

Notice of intention to take adoption leave

Adopters should inform you of their intention to take adoption leave within seven days of being notified by their adoption agency that they have been matched with a child for adoption, unless this is not reasonably practicable.

They will need to tell you:

  • When the child is expected to be placed with them.
  • When they want their adoption leave to start.

Adopters will be able to change their mind about the date on which they want their leave to start, providing they tell you at least 28 days in advance (unless this is not reasonably practicable).

They will also have to inform you of the date on which they expect any payments of SAP to start at least 28 days in advance – again, unless this is not reasonably practicable.

You have 28 days in which to respond to notification of leave plans from an employee. You must write to the employee, setting out the date on which you expect the employee to return to work if the full entitlement to adoption leave is taken.

Matching certificate

Employees have to give you a ‘matching certificate’ provided by their adoption agency as documentary evidence of their entitlement to SAP. You can also ask for this certificate as proof of entitlement to adoption leave.

Employees should ask their adoption agency for a matching certificate which includes the matching date and expected placement date.

Contractual benefits

Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise) throughout their adoption leave period. However, most adopters will be entitled to SAP during the 39 week period.

If your employees have a contractual right to adoption leave, as well as the statutory right, they may take advantage of whichever is the more favourable. Any adoption pay to which they have a contractual right reduces the amount of SAP to which they are entitled.

Return to work after adoption leave

Adopters who intend to return to work at the end of their full adoption leave entitlement will not have to give you any further notification. If they want to return to work before the end of their adoption leave period they must give you eight weeks’ notice of the date they intend to return.

Protection from detriment or dismissal

Employees are legally protected from suffering detriment or dismissal for reasons related to taking, or seeking to take, adoption leave. Employees who believe they have been treated unfairly will be able to complain to an employment tribunal.

Shared leave and pay

Employees who are matched with a child for adoption are able to share their statutory adoption leave and pay with their partners (this also applies to same sex partnerships), subject to meeting the eligibility requirements. Further details on this can be found in our guide to shared parental leave and pay.

Recovery of payments

You can recover payments of statutory adoption pay (SAP) in the same way as you can claim back statutory maternity pay.

You will therefore be able to claim back 92 per cent of the payments made. If you are eligible for small employers’ relief you can claim back 100 per cent. You may be able to receive funding in advance for payments of SAP from Her Majesty’s Revenue and Customs (HMRC).

Getting it right

The legislation surrounding employees’ adoption rights is extremely complex. The costs of failing to follow the rules can be high – and so can the damage to the reputation of your business.

HR:4UK can help you by providing the advice and support you need to ensure that you meet your legal obligations.

For further help and advice, speak to one of our advisors by calling 01455 444222 or complete our online enquiry click here and an advisor will contact you shortly.