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Adoption Overview

This factsheet summarises the main adoption rights for employees.

The following abbreviations are used in this factsheet: 

EDP    Expected date of placement of child for adoption

SAP    Statutory Adoption Pay

If a couple are adopting jointly, they are not both permitted to take adoption leave and pay. One member of the couple should elect to take adoption leave (if they so wish) and the other may be eligible to take paternity leave. The person taking adoption leave is known as the “primary adopter”. See Paternity Leave and Pay Factsheet FS13.02 for further information on paternity leave in these cases. 

The Rights

In general terms, all primary adopting employees have the following statutory rights: 

  • Paid time off to attend up to five adoption appointments. 
  • Adoption leave. 
  • The right to return to the same job (or a suitable and appropriate alternative job). 
  • Protection against unfair treatment or dismissal. 
  • To be offered suitable alternative employment if there is a redundancy situation during adoption leave. 

In addition, some employees may be entitled to statutory adoption pay, if they have a certain level of earning and have the requisite length of service. 

A brief explanation of these rights is set out below. For further details, see Adoption Leave and Pay Factsheet FS14.02.  

Time off to attend Adoption Appointments

An adoption appointment is an appointment arranged by an adoption agency to enable contact with a child who is to be placed for adoption, or for any other purpose regarding the adoption process.

Employees (and agency workers who have met the 12-week qualifying period under the Agency Workers Regulations 2010) adopting on their own are entitled to paid time off to attend up to five adoption appointments. 

If the employee is adopting a child with another person, they must decide between them which will be the primary adopter and which will be the secondary adopter. The primary adopter is entitle to paid time off to attend up to five adoption appointments. The secondary adopter is entitled to unpaid time off to attend up to two adoption appointments. 

Each appointment must not last more than six and a half hours, including travel time. 

Employees are protected from suffering a detriment or being dismissed as a result of exercising this right. 

Adoption Leave and Pay

Adoption leave and pay are potentially available to the following: 

  • Those newly matched for adoption by a UK adoption agency; 
  • Foster parents who are approved for adoption; and
  • Parents of a child born to a surrogate who apply for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008.

Adoption leave and pay are not available in the following circumstances: 

  • Private adoptions;
  • Step-parents adopting children; or
  • Special guardians. 

This factsheet covers adoptions through UK adoption agencies only - for cases of overseas adoptions, or surrogacy arrangements, please seek specific legal advice.

Eligibility

To qualify for adoption leave in relation to a UK adoption, an employee must:

  • Be newly matched with a child for adoption by an approved UK adoption agency;
  • Have notified the agency that they agree the child should be placed with them and agree with the date of placement; and
  • Comply with the statutory notification and evidence requirements (see below). 

Notification to take Adoption Leave

To take advantage of the right to adoption leave, no later than seven days after having been matched with a child, the employee must give their employer notification of their intention to take adoption leave. For full details, see Adoption Leave and Pay Factsheet FS14.02.  

If it is not reasonably practicable to give the notification within seven days, this must be given as soon as it is reasonably practicable. If the employee has not given the correct notice, the start date of their adoption leave can be delayed until they give the correct notice period, but it cannot be postponed beyond the date of placement.

Employers are required by law to formally respond to the notification within 28 days. The employer should write to the employee, confirming the date on which the adoption leave will start and the date on which they expect the employee to return if they take their full 52-week entitlement. 

Rights during Adoption Leave

Primary adopters are entitled to take up to 26 weeks’ ordinary adoption leave (OAL) and up to 26 weeks’ additional adoption leave (AAL), making a total of 52 weeks. This is regardless of the number of hours worked.  Additional adoption leave begins on the day after ordinary adoption leave ends.

Primary adopters can choose to start their adoption leave either from:

  • The date of the child’s placement for adoption (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 and no later than the expected date of placement.

Adoption leave can start on any day of the week. Only one period of leave is available even if two or more children are 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.

During adoption leave, the employee’s contract of employment continues in force and the employee is entitled to receive all their contractual benefits, except for salary/remuneration. This means, for example, that contractual annual leave will continue to accrue.  Other non-cash benefits in kind such as private medical 

insurance, life assurance, permanent health insurance, private use of a company car or laptop and gym membership should also continue. Any employee will therefore have a claim if, because of absence on adoption leave, the employer deprives the employee of any non-cash benefits in kind to which the employee would otherwise have been entitled. 

Salary will be replaced by SAP if the employee is eligible to receive it.

Additional Adoption Leave

As is the case with OAL, the employee’s contract of employment continues in force during AAL and they are again entitled to receive all their contractual benefits, except for salary. 

Salary will be replaced by SAP for the first 13 weeks of AAL if the employee is eligible to receive it.  The remaining 13 weeks of AAL are unpaid.

Contact during Adoption Leave

The employer is entitled to maintain reasonable contact with the employee during adoption leave.  This may be, for example, to discuss their plans for return to work or to update them on developments at work during their absence. 

Keeping in touch days

The law enables an employee on adoption leave to agree with their employer to work for up to 10 days during their adoption leave without bringing that period of leave to an end and without loss of a week’s SAP as a result of carrying out that work.  See Adoption Leave and Pay Factsheet FS14.02 for more details. 

Returning to work after Adoption Leave – Notice Requirements

An employee does not have to give advance notice to their employer if they intend to return to work immediately after the end of AAL.  However, if an employee intends to return to work before the end of AAL, they must give their employer at least eight weeks’ notice of their proposed date of early return.  

If the employee decides not to return to work at all after adoption leave, they must still give notice of termination of employment in accordance with the terms of their contract of employment (or one week’s statutory minimum notice if no contractual notice period has been specified).  

On resuming work after OAL, the employee is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent. 

On resuming work after AAL, the employee is again entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.  If, however, there is some reason why it is not reasonably practicable for the employer to take the employee back in their original job, they will be entitled to be offered suitable alternative work, of equivalent status and responsibility and on no less favourable terms and conditions.

Early termination of Adoption Leave

If an adoption placement is disrupted (i.e. the employee is notified that the placement will not actually be made, or the child dies, or the child is returned to the adoption agency after being placed for adoption), the employee’s adoption leave will end eight weeks after the week in which the disruption occurred. 

If the employee is on AAL at the time of the disruption, and they have less than eight weeks’ AAL remaining, their leave will still end on the date that AAL was due to end. 

Protection against detriment or dismissal

Employees are protected from suffering detriment at work for taking, or seeking to take, adoption leave and they have the right to complain to an Employment Tribunal if they have been treated unfairly.  This protection applies regardless of the employee’s length of service.  If an employee is successful in a claim, they will receive 
compensation as the Tribunal considers to be just and equitable, based on financial losses and an award for injury to feelings. Compensation is potentially uncapped. 

It is automatically unfair to dismiss an employee where the reason or principal reason for the dismissal is connected with the fact that the employee took or sought to take OAL or AAL, regardless of the length of the employee’s employment.

It is also automatically unfair to dismiss an employee (or to select them for redundancy in preference to other comparable employees) for taking or seeking to take adoption leave, or taking or seeking to take any of the benefits of adoption leave, regardless of the length of the employee’s employment.

Statutory Adoption Pay (SAP)

To be eligible to receive SAP, an employee:

  • must have been continuously employed by their employer for at least 26 weeks ending with the week in which they are notified as having been matched for adoption and still be employed during that week;
  • must have average weekly earnings in the eight weeks up to and including the matching week at least equal to the lower earnings limit for the payment of National Insurance contributions (the current rate is listed in our Statutory Rates and Limits table);
  • must give the employer at least 28 days’ notice (or as much as is reasonably practicable) of the date from which they want payment of SAP to begin; and 
  • must provide documentary evidence to show that they are adopting a child through an adoption agency (including the name and address of the adoption agency and the employee, the date that the child is or was expected to be placed for adoption and the date that the adopter was told by the adoption agency that they had been matched with the child).

SAP is paid for up to 39 weeks after commencement of adoption leave. If the placement is disrupted whilst SAP is payable (see Early termination of adoption leave above), payment of SAP will end eight weeks after the week in which the disruption occurred. 

There are two rates of SAP, known as the higher rate and lower rate.  

The higher rate of SAP is paid for the first six weeks.  It is equivalent to 90% of the employee’s average weekly earnings over the eight weeks prior to the week in which the employee was notified of having been matched with a child for adoption. For the purpose of calculating average weekly earnings, shift allowances, overtime payments and commission are all included.  

The lower or standard rate of SMP is paid for the remaining 33 weeks (or less if the employee decides to return to work sooner), at the Government’s set weekly rate or 90% of the employee’s average weekly earnings if this is lower.  Please see our Statutory Rates and Limits table for the current statutory rate. 

SAP is treated as earnings and is therefore subject to deductions of income tax and National Insurance contributions.

SAP is payable whether or not an employee intends to return to work for their employer after their adoption leave.

Should an employer fail to pay SAP, the employee may apply to HM Revenue & Customs for a formal decision.  Where HM Revenue & Customs gives a formal decision that SAP is payable, a subsequent failure to pay SAP within the time allowed is an offence and the employer can be fined.

Shared Parental Leave

SPL gives eligible employees the right to take up to take up to 50 weeks' leave within the first year of their child’s life, provided that they or the adopter has taken steps to bring their adoption leave to an end early. 

There are eligibility requirements for SPL and a statutory notification process that needs to be followed. For further information on this please refer to:

Shared Parental Leave Policy 

Shared Parental Leave and Pay factsheet FS88

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.