Adoption Leave

For many people across the UK - adopting a child is the realisation of a lifelong dream.

But when the adoption goes through, you have a legal duty to provide them with statutory adoption leave, as well as statutory adoption pay.

Failure to do so is against employment law, which could lead to a tribunal with expensive damages to pay.

In this guide, we'll discuss what adoption leave is, your employee's entitlements and the regulations for adoption leave in the UK.

What is Adoption Leave?

Adoption leave is paid time off from work your employees are entitled to to help the child settle into the family home.

This time off is a legal requirement in the UK - so it's crucial you understand the rules and regulations surrounding adoption leave. You have a duty of care to help your employees take this important step in their lives.

Not providing adoption leave could be unfair treatment or discrimination and may lead to an employment tribunal, so you must get it right.

How Much Statutory Adoption Leave Are Employees Entitled to?

Eligible employees can receive statutory adoption leave of up to 52 weeks - this is made up of 26 weeks of ordinary adoption leave followed by 26 weeks of additional adoption leave.

Adoption leave entitlement comes into effect from their first day of employment, you must allow them to return to their former job or offer a suitable alternative job following the end of the leave.

To be eligible for leave, they must meet the following:

• Provide correct notice to their employer. The correct notice in the UK is 28 days.
• Be legally classed as an employee.
• Be able to provide proof to their employer that they're a suitable adoptive parent - for example providing a matching certificate.
• Been matched with a child through an official UK adoption agency.

As part of the support, employees receive for UK adoptions, employees can also receive statutory adoption pay.

How Much is Statutory Adoption Pay?

Statutory adoption pay is the legal minimum amount employees must receive whilst on adoption leave. Employees should receive the following:

• For the first six weeks: 90% of their average weekly earnings.
• For the following 33 weeks: £184.03 a week or 90% of their average weekly earnings (whichever is lower).

How Does Statutory Adoption Pay Work?

Eligible employees can receive statutory adoption pay for 39 weeks. This comes into effect as soon as adoption leave has started.

To be eligible the employee must meet the following:

• Have been continuously employed for at least 26 weeks before they're matched with a child.
• Ensure enough notice has been given to their employer.
• Give proof they are adopting or fostering to adopt if the employer asks for it.
• Earn at least £123 a week (pre-tax) for at least eight weeks before they're matched with a child.

It's important you understand the rights of an agency worker. Agency workers aren’t entitled to adoption leave but may be eligible for pay.

Do All Employees Qualify for Statutory Leave and Pay When Adopting A Child?

Not every employee qualifies for adoption leave after they've chosen to adopt a child. Employees don't qualify for statutory adoption leave and pay if the following criteria is met:

• Arrange a private adoption and not through an adoption agency.
• Become a special guardian.
• Adopt a stepchild.
• Adopt a family member.

You have a legal duty to provide any staff that don't qualify for statutory adoption leave and pay with a SAP1 form explaining the reasons why.

Employees who aren't entitled to adoption pay may be able to receive an adoption allowance from their local authority - as well as a child tax credit.

As an employer, it's important you understand the rights for all adoptions - and this includes surrogacy.

Do Employees Receive Leave for a Surrogacy Arrangement?

Not all employees in a surrogacy arrangement are entitled to receive adoption rights, they must apply to become the legal parents within six months of the child's birth.

They must also apply for the following:

• A parental order if one intended parent is related genetically to the baby.
• An adoption order if the intended parents (also known as parental order parents) are not related genetically to the baby. They must have been in continuous employment for at least 26 weeks by the 15th week before the due date of the baby.

Can Employees Receive Statutory Paternity Leave and Pay for An Adoption?

If adopting jointly only one member of the family has to be named the primary child's adopter for employment purposes and take adoption leave.

It'll have to be decided between the couple who will take statutory adoption leave and who will take statutory paternity leave.

In the UK, employees are entitled to one or two weeks' leave and paternity pay. To be eligible for paternity leave, they must have worked for a minimum of 26 weeks before they are matched with a child and must earn at least £123 a week.

Another option for your employees is taking some annual leave or unpaid leave in order to spend more time with the child.

Following the adoption, your employee may choose to take shared parental leave.

What's Shared Parental Leave?

Shared parental leave is statutory leave that the new adopter can take. However, to take this leave, they must meet the qualifying criteria for statutory adoption leave and pay.

Shared parental leave is a good option for employees looking to split the care of the child.

New adopters can choose to cut short their statutory adoption leave and pay early (after two weeks) and share the remaining 50 weeks of shared parental leave and 37 weeks of shared parental pay.

Do Foster Parents Receive Statutory Adoption Leave?

There are very specific rules for fostering to adopt, not all parents will be entitled to adoption leave.

However, they can choose to take their adoption leave and pay when the child is matched with them for adoption - this can be weeks or months later. It's important you never pressure or try to persuade an employee to take leave when it suits you.

What Happens to Adoption Leave If the Child is No Longer Placed?

If the adoption placement finishes during the adoption leave period, the employee is still entitled to leave and pay for a further eight weeks.

Once this period ends, they are expected to return to work.

What Are the Employment Rights for Overseas Adoptions?

If you have an employee adopting a child from overseas, the following conditions must be met for them to receive adoption leave and pay:

• Must have been in continuous employment for 26 weeks.
• Must sign form SC6 - this form confirms you're not taking paternity leave or pay.

The employee must show their employer that they've received official notification of when their child is expected to enter the UK. This is so their adoption leave can start, and they can return to work on the correct date.

Do You Receive Adoption Leave If You're Self-Employed?

In the UK, there's no provisions which allow self-employed workers to receive any form of adoption leave or pay.

Can Employers Provide Their Own Adoption Pay Scheme?

As an employer, you're well within your rights to offer employees your own adoption pay scheme - which can be more than the statutory scheme. This can make your company more attractive to potential applicants.

However, it's a legal requirement to pay the minimum amount - failure to do so is a breach of the employment contract and could lead to an employment tribunal

If employees face difficulties receiving their adoption rights, they may make a complaint using their employer's grievance procedure.

To help avoid this, make your adoption leave entitlements clear in your employment contract.

Receive Expert Advice on Adoption Leave with BrightHR

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.

However, to receive their entitlements there are conditions which must be met, for example proving they've been matched with a child through an adoption agency.

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

Receive quality advice on adoption leave with our BrightAdvice helpline. Give our friendly and helpful team a call on 0800 783 2806