ADOPTION

ADOPTION

Further resources:

Adoption policy

Maternity, paternity and adoption FAQ

Adoption leave notification form

Adopting parents are entitled to leave & pay in a similar way to maternity and paternity leave.

The entitlement to adoption leave and pay only applies where the child being adopted is under 18. To qualify for adoption leave the employee must;

  • be newly matched with a child for adoption by an approved agency
  • give notice of their intention to take adoption leave no later than 7 days after the date on which they were notified of the match. This should ideally be in writing, stating the specific date the child is expected to be placed and the date the employee wishes to start their adoption leave. Any revisions to the notification should be made in writing providing at least 28 days’ notice
  • if requested be able to produce evidence of a "matching certificate".

Adoption leave

On or after 5 April 2015, an employee who adopts a child through an approved adoption agency is entitled to up to 52 weeks' adoption leave from day one of their employment. This period of leave can start either on the day the child is placed for adoption, or up to 14 days earlier.

Adoption leave rights are now to be extended to surrogacy and "foster to adopt" situations. Parents who will become the legal parents of a child under a surrogacy arrangement are entitled to take statutory adoption leave if the child’s expected week of birth begins on or after the 5th April 2015. Foster parents who are also prospective adopters ("foster to adopt") are entitled to take ordinary adoption leave in relation to children matched with them.

Adoption leave and pay is available to individuals who adopt, or one member of a couple where a couple adopt jointly.

Shared parental leave is available in relation to employees having a child placed for adoption with them on or after 5 April 2015. Shared parental leave enables the couple to share the balance of leave and pay between them.

In addition the option of additional paternity leave continues to be available to the spouse, civil partner or partner of the primary adopter in relation to a child being placed for adoption before 5 April 2015. The provisions enable an eligible employee to take up to 26 weeks' additional paternity leave in the first year after the child's placement, provided always that the primary adopter has returned to work. Additional paternity leave can only be taken after the provision of eight weeks' written notice, and the earliest that it may commence is 20 weeks after the adopted child's placement. It must end no later than 12 months after the date of placement, must be taken as one continuous period in multiples of complete weeks, the minimum period being two consecutive weeks and the maximum 26 weeks.

Adoption pay

Employees with earnings above the National Insurance Lower Earnings Limit and who have at least 26 weeks’ continuous service at the end of the week in which notification of adoption was given will be entitled to Statutory Adoption Pay (SAP) for 39 weeks, paid as follows:

  • 90% of average weekly earnings or Statutory Adoption Pay, whichever is lower.

The standard rate for SAP is determined in April each year by Government Policy and the rate of SAP will be adjusted each year to reflect this.

Typical employment law pitfalls

On or after 5 April 2015, an employee who adopts a child through an approved adoption agency is entitled to up to 52 weeks' adoption leave from day one of his or her employment. Note that employees still need 26 weeks' service to receive statutory adoption pay.

With that in mind, if an employer fails to allow statutory adoption leave (or pay) the adopting parent may resign and claim constructive dismissal, with a high risk of a successful tribunal outcome.

Further issues can arise if the employer fails to return the adopting parent to their old job after adoption leave. Another common issue is the fact that adopting parents qualify for special protection in redundancy situations. If an adopting parent on (or expecting to go on) adoption leave is made redundant when another equivalent employee was available for redundancy (but was not on adoption leave) then the redundancy dismissal of the adopting parent is highly likely to be ruled automatically unfair.

The normal period of employment of 102 weeks (i.e. the service an employee needs to have in order to make an employment tribunal claim) does not apply to the withholding of a statutory right (adoption leave and pay in this context), so employees with less than 1 years’ service could take their employer to tribunal for breach.

Help and support

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