For employers we outline when an employee is eligible for adoption leave and statutory adoption pay.
Eligibility for adoption leave
If your employee adopts a child, then they may be entitled to take adoption leave. Any employee who meets the following criteria can take 52 weeks’ adoption leave. This is made up of 26 weeks’ ordinary adoption leave and 26 weeks’ additional adoption leave. The employee must:
- Have been matched with a child by an adoption agency;
- Have at least 26 weeks’ continuous service by the week the employer is notified of the match;
- Be legally adopting the child;
- Have given proper notice to the employer of their intention to take leave;
- Have produced to their employer evidence of their entitlement to take adoption leave.
Adoption leave isn’t available where the child is already known to the adopters; for example, in step-family adoptions or adoptions by existing foster carers.
If a couple are jointly adopting a child, only one partner will be able to take adoption leave. The employee must give to their employer a document issued by the matching adoption agency stating:
- The name and address of the agency;
- The name and address of the employee;
- The date on which the employee was first notified of the match; and
- The date on which the agency expects to place the child.
Notification of taking adoption leave
The employee must give notice of their intention to take adoption leave within seven days of having been notified of a match, unless this isn’t reasonably practicable. The notice must specify:
- The expected date of placement;
- The date on which the leave will commence.
The employer can request that this notice be given in writing. Once the employer has received the notice, it must respond within 28 days to the employee setting out in writing the date the employee’s adoption leave will end.
The leave can start 14 days before the child starts living with the employee (for UK adoptions) or when the child arrives in the UK or within 28 days of this date (overseas adoptions).
During ordinary adoption leave, the employee is entitled to all the benefits that they would have received if they hadn’t been on adoption leave, apart from wages and salary. This means that the contract of employment continues and the period of ordinary adoption leave counts towards the employee’s continuity of employment.
An employee returning to work after adoption leave normally has the right to return to the same job.
Statutory adoption pay
Statutory adoption pay (SAP) is a payment that employers must make to eligible employees.
An employee qualifies for SAP if:
- They have stopped work because of adoption leave;
- They have 26 weeks’ continuous employment with the same employer by the date they have been notified of the match;
- They are a person with whom a child is, or is expected to be, placed for adoption;
- They have normal weekly earnings of above the lower earnings limit for the payment of National Insurance contributions currently £111;
- They have not elected to receive statutory paternity pay.
The employee is entitled to SAP for 39 weeks, currently at the standard rate of £138.18 per week (or 90 per cent of their gross average weekly earnings).
SAP is subject to Income Tax, National Insurance contributions and any other regular deductions and should be paid by the same method and at the same time as the employee would normally be paid. If there is no normal agreement as to which day wages are paid, payment should be made on the last day of the calendar month. The employee may also have a contractual right to adoption rights which the employer may offset against SAP.
To make a claim for SAP, the employee simply gives his employer 28 days’ notice of the date from which they expect SAP will be paid, unless this isn’t reasonably practicable. The employer has to write within seven days confirming that they’re eligible for SAP, how much they’ll get and when it will start and end.
An employee has to give you proof of adoption to receive SAP. The proof must show:
- The name and address of the agency;
- Date the child was matched (e.g. the matching certificate);
- The date of the placement (e.g. a letter from the agency);
- The relevant UK authority’s official notification confirming that the parent is allowed to adopt (overseas adoptions only);
- The date that the child arrived in the country (e.g. plane ticket).
Where an employee who is entitled to receive SAP leaves their employment before the adoption pay period has begun, they will still be eligible to receive SAP. SAP payments will commence on the date of the child’s placement or, if the termination of employment occurs on or within 14 days before the expected date of placement, on the day immediately following the last day of their employment.
You can offer more than the statutory amount of SAP, but make sure that your policies are clear and accessible to all staff.
Shared parental leave reforms
Shared parental leave is due to be introduced in December. It’s a new right that will allow eligible employees – who are mothers, fathers, partners and adopters – to choose how they share time off from work after their child is born or adopted. To take shared parental leave, the baby must be due to be born – or placed for adoption – on or after 5 April 2015.
Help from Lawpack
If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.
Download our solicitor-approved Adoption Leave Policy to protect your business and comply with employment law.
