How Long Can Employees Take Adoption Leave?

Adoption processes can prove to be time-consuming and complicated for some families.

One of the best ways to support prospective adopters during these times is through statutory adoption leave. This type of leave allows them to get used to being new parents.

However, if you ignore their rights during this time, you could end up facing discrimination claims and losing talented staff-members.

In this guide, we'll look at what adoption leave is, what the law covers, and how to provide eligible employees with their statutory right.

What is adoption leave?

Adoption leave is when an employee takes time off work after being matched with a child; or is expecting a baby through a surrogacy arrangement.

An employee can be eligible for adoption leave if they’re:

• Adopting a child.
• Fostering a child permanently (to become their legal parent).

Prospective adopters must become the legal parent within the first six months of the child's birth. Or they must be matched with a child through an approved adoption agency. (There are separate rules for surrogacy later on).

They won't be eligible for statutory adoption leave and pay if they pursue a private adoption. For example, adopting a step-child.

How long is statutory adoption leave?

Employees can receive up to 52 weeks of statutory adoption leave. All employees have a legal right to request statutory adoption leave from the first day of employment.

The first 26 weeks are known as ordinary adoption leave; and the last 26 weeks are known as additional adoption leave. Adopters are paid different amounts of statutory adoption pay (SAP) during the two periods.

Only the main adopter can receive a statutory adoption leave entitlement. However, they must:

• Legally class as an employee (through their employment contract).
• Give their employer the correct notice.
• Provide proof of their adopting or fostering intentions (if their employer asks for it).

Are you paid during statutory adoption leave?

Only certain employees are entitled to payment during statutory adoption leave.

This is known as statutory adoption pay (SAP); and it's only given for the first 39 weeks of statutory adoption leave.

Adopters will receive different amounts of statutory adoption pay depending on how much they earn. The statutory rate is calculated as followed:

• First 6 weeks of adoption leave: Employees are paid 90% of average weekly earnings (before tax).
• Next 33 weeks of adoption leave: Employees are paid £184.03 per week; or 90% of your average weekly earnings (whichever amount is less).
• Last 13 weeks of adoption leave: Employees can take unpaid leave. (Unless they're paid through a company adoption leave process).

What are the requirements for statutory adoption pay?

To be eligible for statutory adoption pay, employees must meet the following requirements:

• Service: They must be continuously employed for at least 26 weeks (by the same employer).
• Wages: They must earn at least £123 a week before tax. (This is needed for at least eight weeks before being matched with a child).
• Notice: They must inform their employer and give the correct notice.
• Evidence: They must provide proof of their adoption (like, showing a matching certificate).

What happens if you aren't entitled to adoption leave and pay?

Some adopters might not be eligible for statutory adoption leave. Here, you’ll need to provide an SAP1 form explaining why. But they may still qualify for the legal minimum amount of statutory adoption pay. This is often the case with self-employed, casual, and agency workers.

In these situations, employers can offer contractual adoption leave and pay. These are terms created to suit your employees when it comes to their adoption leave entitlement. And they're usually agreed to within their employment contract and staff handbook.

However, contractual adoption pay must be same or higher than the statutory scheme. If it's lower, you could be held liable for legal breaches.

What legal rights apply during statutory adoption leave?

All of an employee's legal rights still apply whilst they're on statutory adoption leave. (All except their legal right to normal pay because they’re temporarily not working).

Even whilst being on leave, employers must continue their service years as they're still legally part of the payroll. Employees on statutory adoption leave are also entitled to the following:

Keeping in touch (KIT) days

Employees may ask if they can work during their statutory adoption leave period. This request is known as a keeping in touch (KIT) day. Adopters can use up to 10 days during their leave period.

However, it's up to employers to decide the terms of the KIT days. If they work more than 10 KIT days, their statutory adoption leave and pay automatically end by law.

Redundancy

Employees on statutory adoption leave have the same protection during redundancy as those on maternity leave.

If redundancies are inevitable, you must offer them any suitable alternative job with similar terms and conditions to their previous role. And their new work placement must be prioritised over other staff-members.

Annual leave

Employees on annual leave still accrue additional adoption leave. Even if their leave period carries onto a new holiday year.

Employers should discuss how the employee plans on using their holiday periods, as this will help reduce business disruption and losses.

Shared parental leave and pay

As mentioned, only the main adopter is allowed to receive statutory adoption leave and pay. For more financial aid, they can request shared parental leave (SPL) and pay during their leave period.

Shared parental leave can be taken separately or in one go. But only after a minimum period of two weeks during their adoption leave. However, employees must request shared parental leave at least eight weeks' notice before their chosen leave date.

Paternity leave and pay

Employees who are second adopters may be entitled to two weeks of paternity leave during their adoption leave period. This is in addition to statutory paternity pay (SSP).

Employees must meet the same legal requirements for statutory adoption leave and pay. They must also complete a SC4 form (or SC5 form for overseas adoptions) to give the correct notice for paternity leave entitlements.

Can you get adoption leave for fostering?

Yes, eligible employees can still get adoption leave and pay when fostering a child. But they must be fostering to adopt - meaning, they have an intention to adopt a child permanently.

However, foster parents won't qualify for statutory adoption leave and pay if they've:

• Arranged a private adoption process.
• Become a special guardian or kinship carer.
• Adopted a step-child or family member.

Can you get adoption leave for surrogacies?

Only certain employees will get adoption leave and pay when using a surrogacy arrangement. (These adopters are often known as parental order parents).

By law, the birth mother is seen as a legal parent from the child's birth. However, parental order parents must apply to become a legal parent within the first six months of the birth.

During a surrogacy arrangement, adopters must apply for:

• Parental order: If one intended parent is genetically related to the child being adopted.
• Adoption order: If both intended parents aren't genetically related to the child being adopted.

Remember, only one of the parental order parents can qualify for adoption leave and pay. Only one parent can receive statutory adoption leave and pay.

The second adopter may qualify for two weeks of paternity leave and pay; or shared parental leave and pay. They can even request an adoption allowance or child benefit if they need more financial support.

How to provide adoption leave for eligible employees

Employers must offer the right adoption pay, leave period, and employment rights. That way, you'll be able to support them during these changes.

Let's look at ways to provide adoption leave to eligible employees:

Provide information about adopting

If an employee is thinking about adopting (or fostering to adopt) a new child, they must provide relevant information to their employer. They need to tell you within seven days of either:

• Being matched with a child.
• Receiving confirmation on an adoption placement (when fostering to adopt).

If they can't tell you within seven days, they must tell you as soon as possible. But it should be at least 28 days beforehand.

Confirm statutory adoption leave request

Employers should then provide confirmation about their adoption leave request accordingly. This must be done in writing and within 28 days from their request.

If the employee isn't eligible for statutory adoption pay, you can support them in other ways. You may offer contractual adoption pay which must be the same or higher than the statutory one. Or refer them to government support for advice on child tax credit.

Allow time off for adoption appointments

Only main adopters have the right to paid time off to attend adoption appointments.

This right covers five adoption appointments. Second adopters have the right to take unpaid time off to attend up to two adoption meetings.

Provide evidence for adoption process

Employees should provide evidence about their adoption process. If they're adopting a child in the UK, they should have details on:

• Name of the adoption agency.
• Date of matching certificate.
• Expected date of adoption placement.

If they're adopting a child from overseas, they must provide UK authorisation verifying their adoption (i.e., like an official notice). And provide evidence of the child's arrival (i.e., like a plane ticket).

Keep contact during adoption leave

Employees don't have to inform you about whether they plan on returning to work after statutory adoption leave. That's why it's best to keep contact with them during their leave period.

If they don't make any contact after their 52 weeks' notice, employers have a legal right to terminate their employment contract. However, they could raise a complaint to their employer's grievance procedure, or even employment tribunals, if this is done unfairly.

What if you're adopting more than one child?

Some employees may decide on adopting (or foster to adopt) more than one child during the same adoption placement.

Adopters are only entitled to one period of statutory adoption leave. If the children were adopted separately, the adoption leave restarts when the second placement begins. (This also applies to their adoption pay).

What if the adoption placement comes to an end?

Sometimes, a child's placement ends unexpectedly or without intention. Here, statutory adoption leave will stop after eight weeks after the placement ends. But only if:

• The adoption agency states the placement can no longer take place.
• The child dies during adoption leave.
• The child is returned to the adoption agency.

Get expert advice on adoption leave with Peninsula

When an employee wants to adopt a child, they may initiate talks about their compulsory adoption leave.

Employers should be communicative and supportive throughout this period. And apply all employment rights that still stand. If you ignore any, you could end up facing discrimination claims and losing talented staff-members.

Peninsula offers expert advice on adoption leave. Peninsula offers expert advice on modern slavery statements. Our HR team offers 24/7 HR employment advice which is available 365 days a year.

Want to find out more? Get advice from one of our HR consultants. For further support, call our telephone number 0800 028 2420.