Adoption Leave

02 April 2020

For many people, adopting a child is the realisation of a lifelong dream. If an employee adopts a child, you have a legal duty to provide them with statutory adoption leave.

Failure to do so means you could end up facing a claim raised against you in employment tribunals.

In this guide, we'll discuss what adoption leave is, employment rights surrounding UK adoptions, and how much adoption pay employees can receive.

What is statutory adoption leave?

Statutory adoption leave is a paid time off entitlement for employees who are adopting a child. This time allows employees to help their child settle into their new home.

Providing employees with time off during adoptions is a legal requirement. So, you must understand the legal entitlements for those who adopt a child.

How much statutory adoption leave are employees entitled to?

If eligible, employees can receive statutory adoption leave of up to 52 weeks. This time is split up into two types of adoption leave:

  1. 26 weeks of ordinary adoption leave.
  2. 26 weeks of additional adoption leave.

Adoption leave entitlement comes into effect from their first day of employment. To receive this leave, employees need to:

  • Provide the correct notice period to their employer. (This must be within 7 days of being matched with a child).
  • Legally class as an employee.
  • Offer a matching certificate if required.

Some employees may be able to receive statutory adoption pay on top of leave.

How much statutory adoption pay are employees entitled to?

Statutory adoption pay is the legal minimum payment provide to employees on adoption leave.

This statutory scheme ensures financial security during initial stages of an adoption process.

Employees should receive the following:

  1. For the first six weeks: 90% of their average weekly earnings.
  2. For the following 33 weeks: £156.66 a week or 90% of their average weekly earnings (whichever one is lower).

Do all employees qualify for statutory adoption pay?

Employees qualify for statutory adoption pay if they have:

  • Average weekly earnings of at least £123 a week (before tax).
  • Continuously served for at least 26 weeks. (From the time they were match with a child. Or from the 15th week before the due date if it’s within a surrogacy arrangement).
  • Provided their employer proof of adoption (if this is needed).
  • Applied the correct notice period at the start of adoption leave. (This must be at least 28 days from when they want to receive adoption pay).

Agency workers may qualify for statutory adoption pay if they earn enough money and have provided enough service. Clearly outline all requirements for adoption leave in your employment contract.

Employees will not qualify for statutory adoption leave and pay if they:

  • Arrange a private adoption.
  • Become a special guardian.
  • Adopt a stepchild or a family member.

Employees who do not qualify for adoption pay may be able to receive support from their local authority, such as adoption allowance or child benefits.

When does adoption leave start?

To ensure you manage adoption leave successfully, you need to know when your employees can take adoption leave. Adoption leave starts:

  • Up to 14 days prior to a child living with their new parents (for UK adoptions).
  • When a UK adoption agency matches a child with their new parents.
  • When the child arrives in the UK within 28 days of chosen date (for overseas adoptions).
  • On the day of the child's birth or the day after (for surrogacy arrangements).

Can employees return to the same job after adoption leave?

An employee who returns to work after adoption leave has the right to return to the same job. But only is they’ve taken up to 26 weeks leave. If this isn't possible, then you must offer them a suitable alternative role (after returning from their 26 weeks leave).

Explain to employees beforehand if you have changes their job role before they return.

What are statutory paternity leave and pay?

If your employee is adopting a child as a couple, the second adopter may be able to take one or two weeks of statutory paternity leave. Paternity leave must be taken within eight weeks of the adoption placement starting.

The intended parent qualifies for paternity pay if they’ve worked for a minimum of 26 weeks. This must be before the week when a child has been matched for adoption (in the UK). Or when the child enters the UK for adoption (from overseas).

Employees will also need to earn at least £123 per week (before tax) to qualify for paternity leave and pay.

What is shared parental leave?

Shared parental leave is when the main adopter returns to work before the end of the adoption leave period, allowing the other parent to share leave. (Or they can give ‘binding notice’ to end their leave).

The adopters can choose to end their leave after a minimum of two weeks. This allows them to share up to 50 weeks of shared parental leave. And up to 37 weeks of shared parental pay with their fellow adopter.

Do employees receive leave and pay for overseas adoptions?

If an employee is adopting a child from overseas, they need to meet certain conditions to receive adoption leave and pay.

The employee must sign a form SC6; this confirms you're not taking paternity leave or pay.

The employee must also show they've received an official notification stating the child is from abroad. And must provide the date of when the child is expected to enter the UK.

Do employees receive adoption leave and pay for surrogacy arrangements?

If employees are adopting through a surrogacy arrangement, they may be entitled to adoption leave and pay.

The intended parents (known as parental order parents) must have already obtained, or intend to obtain, a parental order. Such an order proclaims them as legal parents of the child.

Can an employee take time off for adoption placement meetings?

Prospective adopters have the right to time off for adoption placement meetings.

The eligible person for adoption leave is entitled to paid time off for up to five adoptions. This is after they’ve been matched with a child.

The second adopter has the right to unpaid time off for two adoption placement meetings. Be aware time off for these meetings is capped at 6.5 hours per meeting.

Do foster parents receive statutory adoption leave?

Foster parents looking to adopt are also entitled to statutory adoption leave and pay. They can receive their entitlement up to 14 days before the expected placement date.

They can take their leave and pay when the child is matched with them–which can be weeks or even months later. Never pressurise an employee to take their leave when it suits you. However, they still need to give the correct notice during this time.

Get expert advice on adoption leave from Peninsula

As an employer, you have a legal duty to provide your staff with statutory adoption pay, as well as 52 weeks of statutory adoption leave.

Failure to provide staff with their adoption leave rights is a breach of employment law and could lead to a tribunal hearing.

Peninsula offers 24/7 HR advice which is available 365 days a year. We take care of everything when you work with our HR experts. Want to find out more? Contact us on 0800 051 3687 and book a free consultation with one of our HR consultants.

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