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”.
Rights under adoption leave
The key rights for an employee who has elected to be “the adopter”, or who has elected to be the lead parent in a surrogacy, are:
Up to 52 weeks’ statutory adoption leave (SAL), split into 26 weeks’ ordinary adoptionleave (OAL) and 26 weeks’ additional adoption leave (AAL).
- Statutory adoption pay (SAP) for up to 39 weeks (the adoption pay period or APP).
- The right to return to the same job (or, in certain circumstances, to return to a suitable and appropriate alternative job).
- Protection from detriment or dismissal relating to adoption leave.
- Priority to be offered suitable alternative employment if redundancy occurs during the leave.
Employers are always free to agree more favourable contractual terms than the statutory minimum provision. However, it is not possible for an employee to agree to less favourable terms than their statutory minimum entitlement.
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 were 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. 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. Shared parental leave enables the couple to share the balance of leave and pay between them.
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
Since 2015 there has been no requirement for qualifying service in order to qualify for adoption leave – 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 2 years to bring a tribunal claim does not apply to the withholding of a statutory right (adoption leave and pay in this context), so employees with very short service (and job applicants) could take their employer or prospective to tribunal for breach.
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