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Adoption Leave and Pay

Posted by Lesley Furber on Jan 16th, 2019 | Employment law

Most people are aware of their right to maternity or paternity leave and pay – but not everyone is aware that the same benefits are available for adoption, too.

Adoption leave is split into two types – ordinary and additional. We’ll be exploring both in this article, explaining the key differences and how you can claim.

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Employees who are:

  • individuals who adopt
  • a couple where a couple adopt jointly (the couple must choose which partner takes adoption leave; the other partner may be eligible for paternity leave and pay)
  • newly matched with a child for adoption by an adoption agency recognised in the UK.

There are no age restrictions placed on adoption leave, and employees are eligible for the benefit – assuming they meet the above criteria – from their first day of employment.

Adoption leave and pay isn’t available in circumstances where a child has not been newly matched for adoption, for example when a step-parent is adopting a partner’s children, or if you adopt privately.

The UK government have amended legislation so that prospective parents in a surrogacy arrangement who apply for a parental order are now eligible for statutory adoption leave and pay, shared parental leave and pay and paternity leave. Those in “foster to adopt” arrangements run by local authorities are also included in the definition of adoption.

Couples who adopt a child from outside the UK will also have the right to shared parental leave and pay. Please refer to the gov.uk website for more details.

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Prospective fathers/partners of pregnant women and intended parents in surrogacy arrangements have the right to take time off to attend two antenatal appointments with their partner. There is no legal right to paid time off and the time off to attend appointments will be for a maximum of 6.5 hours on each occasion. This applies to all employees and agency workers with 12 weeks service.

‘Fathers’ must provide reasonable notice of the appointment but (legally) do not need to provide evidence of the appointment.

Since April 2015, parents have been entitled to paid time off to attend adoption appointments. The primary adopter can take paid time off to attend up to five pre-adoption appointments; the secondary adopter will be entitled to unpaid time off to attend up to two pre-adoption appointments. Each appointment must be no longer than 6.5 hours time off work on each occasion. Employees who suffer a detriment or dismissal in relation to taking time off for adoption appointments will be protected under unfair dismissal laws.

What you are eligible for

If you meet the above criteria, you qualify for 52 weeks of Statutory Adoption Leave (26 weeks Ordinary and 26 weeks Additional Leave) and 39 weeks of Statutory Adoption Pay:

  • You can choose when to start your adoption 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
  • You must tell your employer you have been matched within seven days of notification (if this is reasonably practical), give your employer at least 28 days notice of the date you want Statutory Adoption Pay to start, if possible, and give them the ‘matching certificate’ from your Adoption Agency
  • You can change your mind about when you want to start your adoption leave as long as you give your Employer 28 days notice.

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During the 26 weeks adoption leave, you’re entitled to benefit from all your normal terms and conditions of employment, except for salary/pay, including statutory holiday entitlement and employers’ pension contributions.

If you wish to return to work before the end of ordinary adoption leave (or during additional adoption leave – see below) you need to give your employer eight weeks notice of your new return date. A new type of employment contract – the Employee Shareholder Contract – came into being on 1st September 2013. Under this type of contract, employees would have to give 16 weeks notice.

At the end of ordinary adoption leave, you’ve the right to return to your original job on your original terms and conditions. If a redundancy situation arises, you must be offered a suitable alternative vacancy if one is available. If the employer can’t offer you suitable alternative work, you may be entitled to redundancy pay.

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Additional adoption leave starts immediately after ordinary adoption leave and continues for a further 26 weeks. However, you don’t have to take Additional Adoption Leave.

During this period your contract of employment continues but with limited terms and conditions, but you continue to accrue statutory holiday entitlement. This additional leave means you can be away from your job on adoption leave for around 52 weeks in total.

When an employer writes to you setting out your return date (which they must do within 28 days of you telling them that you are adopting) they’ll assume that, if you are eligible for additional adoption leave, you will be taking it. If you wish to change your return date you must give eight weeks notice of this.

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You’re entitled to return to your original job or, if this isn’t reasonably practicable, to a suitable alternative job. If your employer can’t offer you suitable alternative work, you may be entitled to redundancy pay.

You can also take four weeks of Parental Leave at the end of your Adoption Leave without affecting your return to work rights. If you decide not to return from Adoption Leave, you must give your employer your normal ‘contractual’ notice to resign.

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Payments during ordinary and through part of the additional adoption leave are available to employees from day one of their employment, and is paid for a maximum of 39 weeks.

SAP will be 90% of your average weekly earnings for the first six weeks then paid at the flat rate of £145.178 per week from 9th April 2018, increasing to £148.68 from 7th April 2019. Normal tax and national insurance contributions will be deducted from SAP as it is paid through your normal payroll.

Your employer may offer more generous or longer payments during adoption leave if this is written into your contract of employment. They must also continue making any pension contributions they make for you during the whole SAP period (or for all the time you receive any ‘contractual’ Adoption Pay).

If you don’t take all of the 39 weeks SAP you’re eligible for, the other adoptor (partner/spouse) may be able to ‘take over’ the remaining entitlement you have not used as Shared Parental Leave.

‘Keeping in touch’ days were introduced in 2007, allowing employees to perform up to 10 days work so long as both parties agree what work will be done, and how much they’ll receive as payment. This work can include relevant training, attending conferences/meetings etc.

You don’t lose your entitlement to adoption leave or pay during these days.

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During Adoption Leave you obviously can’t take holiday and be on adoption leave at the same time. Therefore you must take your holiday entitlement before or after adoption leave. For details on bank holidays that occur during statutory adoption leave see our Working Time Regulations page.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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