Adoption Leave and Pay

Posted on Sep 16th, 2008 | Employment law

Adoption Leave is split into two types – Ordinary and Additional.

[Updated 2018]

Adoption leave – who qualifies?

Employees who are either:

  • individuals who adopt
  • or one member of 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)
  • and who are newly matched with a child for adoption by an adoption agency recognised in the UK
  • and who have worked continuously for their employer for 26 weeks ending with the week in which they are notified of being matched with a child for adoption. From 5th April 2015, Adoption Leave will be available from Day 1 of employment
  • There are no age restrictions.

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

However, in Autumn 2013, the European Court of Justice decided that a surrogate mother was entitled to maternity leave. 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 and for shared parental leave and pay and paternity leave and pay from 1st December 2014. Those in “foster to adopt” arrangements run by local authorities will be included in the definition of adoption from 5th April 2015.

Adoption Leave and Pay entitlements for those who are adopting from overseas are slightly different – from 5th April 2015, couples who adopt a child from outside the UK will also have the right to shared parental leave and pay. Please refer to the DirectGov website for more details.

Workers and Freelancers are generally not entitled to Statutory Adoption Leave, although your Employer may give you unpaid leave. Workers may be entitled to Statutory Adoption Pay. If you’re an Employee who’s not entitled to Adoption Leave or Pay, your Employer may agree to give you unpaid leave, paid holiday or Parental Leave.

Read details of Shared Parental Leave that will be introduced in 2015 here and that will apply to adopters too.

From 1st December 2014, 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.

In addition, from 5th April 2015, there will be a new entitlement to paid time off to attend adoption appointments. The primary adopter will be able to have 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.

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; and 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.

What rights does a woman have while on ordinary adoption leave?

  • 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. More details here
  • At the end of ordinary adoption leave, you have 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 cannot offer you suitable alternative work, you may be entitled to redundancy pay
  • If you’re employed on a fixed term contract when adopting that ends during your ordinary adoption pay period, you’ll continue to receive SAP (see below) for its total duration, even if your contract ends before this.

Additional Adoption leave:

  • Additional adoption leave starts immediately after ordinary adoption leave and continues for a further 26 weeks. You, however, 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.

What rights do you have at the end of additional adoption leave?

  • 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.

Statutory Adoption Pay

Payments during ‘ordinary’ and through part of the ‘additional’ adoption leave are:

  • Employees and workers who have at least 26 weeks service with their employer (by the the week you are notified of being matched with an adopted child) will qualify for Statutory Adoption Pay (SAP). For more details about continuous service read our guide here. From 5th April 2015, Adoption Leave will be available from day one of employment
  • SAP is paid for a maximum of 39 weeks
  • From April 2017 SAP will be 90% of your average weekly earnings for the first six weeks then paid at the flat rate of £140.98, increasing to £145.178 per week from 9th April 2018
  • 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
  • Your Employer must 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)
  • From 5th April 2015, if you don’t take all of the 39 weeks SAP you are eligible for, then the other adoptor (partner/spouse) may be able to ‘take over’ the remaining entitlement you have not used as Shared Parental Leave.

From 1st April 2007 ‘Keeping in Touch’ days are introduced

  • During either Ordinary or Additional Adoption Leave, Employees can now do up to 10 days work – as long as both parties agree to the work being done (and what work will be done and how much you will be paid). This ‘work’ can include relevant training, attending conferences/meetings etc.
  • You don’t lose entitlement to Adoption Leave or Pay during these days.

Holiday Entitlement

During Adoption Leave you obviously cannot 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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Written by Lesley Furber

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