When an employee is going through the process of adopting a child, or having a child through a surrogacy arrangement, they may be eligible for statutory adoption leave and adoption pay, provided they meet the relevant requirements.
Most employers are aware of the rights and responsibilities around maternity, paternity and parental leave and pay. What is less common, but equally important, is understanding the entitlements of staff who are adopting a child or who are having a child through surrogacy.
In this guide for employers, line managers and HR, we explain statutory adoption leave rights in the UK, including adoption pay, provides a useful overview of what the law says when it comes to employee entitlements in the context of adoption and surrogacy.
Section A: What is Adoption Leave?
Adoption leave is a statutory entitlement in the UK that allows employees to take time off work when they adopt a child. The only exceptions to this are where an adoption is arranged privately, the individual is to become a special guardian, or where they adopt a stepchild or family member.
Eligible employees can take up to 52 weeks of adoption leave, consisting of 26 weeks of Ordinary Adoption Leave and 26 weeks of Additional Adoption Leave.
To qualify, the employee must provide the correct notice and proof of the adoption. Statutory Adoption Pay (SAP) is available for up to 39 weeks of leave, subject to eligibility criteria based on earnings and length of service. Adoption leave is available to individuals and couples, with one partner able to take the leave while the other may qualify for paternity leave or shared parental leave.
Section B: Who is Entitled to Adoption Leave?
To be eligible for statutory adoption leave, the individual must be an employee, they must provide their employer with the correct notice to start their period of leave, and they must provide proof of the adoption or surrogacy arrangement, if requested by the employer.
If adopting as a couple, only one of the parents can take statutory adoption leave, and it is for the couple to decide who will take the adoption leave. In most cases, the father will opt to take statutory paternity leave, which is up to 2 weeks. To qualify for statutory paternity leave, the individual must be an employee and have worked continuously for their employer for at least 26 weeks by the qualifying week.
For employees adopting a child from overseas with a partner, they must sign form SC6 to confirm that they have chosen to take statutory adoption leave and adoption pay, and will therefore not be taking statutory paternity leave and pay. The other parent must also complete form SC5 when adopting from abroad, to confirm that they have opted to take statutory paternity leave and pay.
If an employee is adopting a child from abroad on their own, they will not be required to complete the form SC6 declaration.
Section C: Statutory Adoption Pay Criteria
The eligibility criteria for adoption leave and pay are different, meaning some employees may not qualify for both. In employment terms, adoption leave is referred to as a day one right, with no qualifying service period. In contrast, to be eligible for statutory adoption pay, an individual must meet the following criteria.
They must have been continuously employed by the same employer for at minimum of 26 weeks by the week they were matched with a child or notified of an adoption placement. They must provide proof of the adoption or surrogacy, and provide the employer with the correct notice. They also have to earn on average at least £123 a week before tax (for 2022/23) in an 8-week period.
The eligibility requirements will be the same if an employee is adopting from overseas, except that they must have been continuously employed by their employer for at least 26 weeks when they start receiving adoption pay. The employee must also sign form SC6.
For those employees in a surrogacy arrangement, the requirements are again the same, except that they must have worked continuously for the employer for at least 26 weeks by the 15th week before the baby is due. The employee must also intend to apply for a parental order and expect that order to be granted, where they do not have any child-related convictions ‘and’ the birth mother or father have agreed to the arrangement. Such an order will transfer legal parenthood from the surrogate to the intended parents.
If the employee is genetically related to the surrogate child, as either the egg or sperm donor, they can choose to get paternity leave and pay instead of adoption leave and pay, but they cannot get both. Importantly, if the intended parents are not genetically related to the child, they will need to apply for an adoption order instead of a parental order.
Section D: How Long Is Statutory Adoption Leave?
Statutory adoption leave is for up to 52 weeks, made up of 26 weeks’ ordinary leave and 26 weeks’ additional leave. The period of adoption leave can start either: on the date that the child begins living with the employee for UK adoptions, or up to 14 days before the expected placement date starts; when the child arrives in the UK for overseas adoptions, or within 28 days of this date; or the day that the child is born, or the day after, for any surrogacy arrangement.
In the context of a fostering for adoption placement, statutory adoption leave can begin either when the placement is made or 14 days before the expected placement date, or at the point when the child is matched with the employee for adoption. However, the employee will only be eligible for one period of adoption leave per placement.
If an employee is entitled to statutory adoption leave, they can also get paid time off work to attend 5 adoption appointments after they have been matched with a child, whilst the second adopter will be permitted to take unpaid time off for 2 appointments.
Section E: How much is Statutory Adoption Pay?
Statutory adoption pay is paid for up to 39 weeks and will start at the same time as the period of adoption leave. This should be paid in the same way as the employee’s wages, for example, monthly or weekly, with deductions made for tax and National Insurance.
The weekly amount payable for statutory adoption pay is 90% of the employee’s gross average weekly earnings for the first 6 weeks, followed by the lower of either £184.03 or 90% of the individual’s gross average weekly earnings for a further 33 weeks.
This is the minimum amount that an employer must pay an eligible member of staff, where they cannot pay them any less than this. However, the employer can choose to pay their staff more under the terms of any occupational adoption pay scheme.
Employers can use the online adoption pay calculator at GOV.UK to check an individual’s eligibility to statutory adoption pay and their weekly adoption pay entitlement. For members of staff who are not classed as ‘employees’, such as agency workers, casual workers and some zero-hours contract workers, even though they will not be entitled to statutory adoption leave, they may still qualify for statutory adoption pay. However, an agreement will need to be reached as to how much leave the worker will be able to take.
Section F: Notice for UK Adoptions
When it comes to providing an employer with notice of statutory adoption leave, an employee must give their employer at least 7 days notice of being notified that they are being matched with a child or expecting a fostering for adoption placement how much adoption leave they would like, their adoption leave start date or the expected or actual date that the child will be placed with them.
Having been given notice by the employee, the employer must confirm in writing the adoption leave start and end dates within a period of 28 days. If the expected date of placement changes, the employee must tell their employer at least 28 days before their original start date or the new start date, whichever is earlier. The employee must also give the employer at least 8 weeks’ notice if they want to change their return to work date.
To claim statutory adoption pay, the individual must tell their employer when they want their adoption pay to start, giving at least 28 days’ notice, unless the time between the child being matched and being placed is less than this. The employer must confirm within 28 days how much pay the person will receive, with start and end dates. In circumstances where a member of staff is not eligible for statutory adoption pay, the employer must provide form SAP1 explaining the reasons for this within 7 days of making their decision.
In respect of both notice for statutory adoption leave and adoption pay, the employer can ask for that notice in writing. The employer may also ask for proof of the adoption. Importantly, an individual must give the employer proof of adoption to qualify for statutory adoption pay, whereas proof is not strictly required to qualify for statutory adoption leave, not unless the employer specifically request this.
Proof of adoption must show the employee’s name and address, plus the adoption agency’s details, as well as the match date and date of placement. To satisfy the notice requirement, the individual will therefore usually need to provide either their matching certificate and/or a letter from the agency. In the case of fostering for adoption placements, the person will again need to provide written evidence of the placement from the adoption agency.
Section G: Notice for International Adoptions
The rules around statutory notice periods are slightly different if an employee is either adopting from overseas or they are having a child through a surrogacy arrangement.
For overseas adoptions, the employee must tell their employer the date of their official notification and when they expect the child to arrive in the UK within 28 days of receiving that notification. If the employee has worked for their employer for less than 26 weeks, they can tell their employer within 28 days of the Sunday in their 26th week instead.
The employee must also tell the employer the actual date that the child arrives in the UK, within 28 days of this date and how much leave they want and their start date, giving the employer 28 days’ notice.
The employer then has 28 days to notify the employee of their leave start and end dates. If the employer requests proof of an overseas adoption, the employee must provide the official notification from the relevant UK authority confirming that they are allowed to adopt and proof of the date that the child is due to arrive in the UK, such as a plane ticket.
If the expected date of placement for overseas adoptions changes, the employee must again tell their employer at least 28 days before their original start date or the new start date.
Section H: Notice for Surrogacy
If the employee is using a surrogate to have a baby, they must tell their employer the due date and when they would like to start their adoption leave at least 15 weeks before the expected week of birth. The employer may ask for this in writing. The employer may also ask the employee to provide a written statement, known as a statutory declaration, to confirm that the employee intends to apply for a parental order within the 6-month period after the child is born ‘and’ that they expect an order to be granted. The employer will then have 28 days to write to the employee confirming their leave start and end dates.
Section I: Employee Rights During Adoption Leave
When an employee is absent from work on statutory adoption leave, as with any other type of statutory leave, all their contractual rights, except the right to normal pay, will continue during the period of both ordinary and additional adoption leave. Their statutory employment rights will also be protected. This includes their right to accrue paid holiday and the right to pay rises, in addition to the right to return to work at the end of their leave.
The extent of an employee’s rights when returning to work after taking statutory adoption leave will very much depend on how much leave they choose to take.
For those employees who take up to 26 weeks’ adoption leave, they will be entitled to return to their previous job role. For those that take more than 26 weeks’ leave, they again have the right to return to the same job but, if that is no longer reasonably practicable, the employer must offer a suitable alternative job on the same or similar terms and conditions. The employee will also be protected against dismissal for reasons relating to their leave.
Section J: Summary
Adoption leave in the UK allows employees who are adopting a child to take time off work to bond with and care for their new family member. Eligible employees are entitled to up to 52 weeks of leave, with 39 weeks potentially paid under Statutory Adoption Pay (SAP). Employers must understand and adhere to these rules to ensure legal compliance and support their employees effectively.
Key risks for employers include failing to provide the correct amount of leave or pay, which could lead to legal challenges or disputes. Employers must also ensure they follow the correct procedures for notification and documentation. Employees must notify their employer of their intention to take adoption leave within seven days of being matched with a child, and they must provide evidence of the adoption.
Considerations for employers include managing the impact on the business during the employee’s absence and ensuring the employee’s rights are protected during and after the leave. Proper planning and clear communication are essential to mitigate any potential issues. Employers should also be aware of the rights to return to work and the possibility of flexible working requests following adoption leave.
Section K: Need Assistance?
DavidsonMorris’ employment lawyers support employers with all aspects of workforce management, including statutory entitlements for adoption and other family-related leave and pay. For advice on adoption policy or on a specific entitlement issue, contact us.
Section L: Adoption Leave FAQs
Who qualifies for adoption leave?
To qualify for statutory adoption leave, an individual must be an employee, provide the employer with the correct notice, within 7 days of being matched with a child, and provide proof of the adoption, if requested by the employer.
Do you get leave from work if you adopt?
You may qualify for statutory adoption leave if you are an employee adopting a child from either in the UK or overseas, unless the adoption is arranged privately, or where you are adopting a stepchild or family member.
How long is adoption leave in UK?
UK statutory adoption leave is for 52 weeks, whilst statutory adoption pay, where eligible, is payable for up to 39 weeks. However, to qualify for adoption leave and adoption pay, the employee must provide the employer with the correct notice.
What is the duration of adoption leave in the UK?
Adoption leave in the UK can last up to 52 weeks. It consists of 26 weeks of Ordinary Adoption Leave followed by 26 weeks of Additional Adoption Leave.
Who is eligible for Statutory Adoption Pay (SAP)?
Employees are eligible for Statutory Adoption Pay (SAP) if they have been continuously employed for at least 26 weeks by the time they are matched with a child. Additionally, their average weekly earnings must be above the Lower Earnings Limit.
Can both parents take adoption leave?
Only one parent in a couple is entitled to adoption leave. However, the other parent may be eligible for paternity leave or shared parental leave.
What notice must an employee give to take adoption leave?
An employee must notify their employer of their intention to take adoption leave within seven days of being matched with a child. They must also provide evidence of the adoption, such as a matching certificate.
Are employees protected from dismissal during adoption leave?
Employees are protected from unfair treatment or dismissal during adoption leave. Employers must ensure that the employee’s job is kept open for their return or offer a suitable alternative role if necessary.
Can adoption leave be shared between parents?
Adoption leave can be shared between parents through Shared Parental Leave, allowing both parents to take time off work and share childcare responsibilities during the first year after adoption.
Section M: Glossary
| Term | Definition |
|---|---|
| Adoption Leave | A statutory entitlement allowing the primary adopter to take time off work when adopting a child. |
| Statutory Adoption Pay (SAP) | Financial support provided to eligible employees during adoption leave, payable for up to 39 weeks. |
| Ordinary Adoption Leave | The first 26 weeks of adoption leave available to the primary adopter. |
| Additional Adoption Leave | The second 26 weeks of adoption leave that follows Ordinary Adoption Leave. |
| Primary Adopter | The individual in an adoption arrangement who takes main responsibility for the care of the adopted child. |
| Matching Certificate | An official document provided by an adoption agency confirming that an adopter has been matched with a child. |
| Shared Parental Leave | Leave that can be shared between both parents, allowing them to divide time off work after adoption. |
| Paternity Leave | Time off work granted to the partner of the primary adopter to support them and the child. |
| Lower Earnings Limit | The minimum weekly earnings an employee must have to qualify for Statutory Adoption Pay. |
| Flexible Working Request | A request made by an employee to adjust their working hours or pattern, often made after returning from leave. |
| Continuous Employment | The length of time an employee has been employed without a significant break in service, relevant for eligibility. |
| Return to Work Rights | The legal rights of an employee to return to their job or a similar one after taking adoption leave. |
Section N: Additional Resources
GOV.UK – Adoption Leave and Pay
https://www.gov.uk/adoption-pay-leave
Comprehensive information on adoption leave and pay, including eligibility criteria, statutory entitlements, and guidance for both employers and employees.
ACAS – Adoption Leave and Pay
https://www.acas.org.uk/adoption-leave
Guidance on the rights and responsibilities of employers and employees regarding adoption leave, with additional advice on managing adoption in the workplace.
CIPD – Adoption Leave and Pay
https://www.cipd.co.uk/knowledge/fundamentals/emp-law/parental/adoption-leave-pay-factsheet
A detailed factsheet from the Chartered Institute of Personnel and Development (CIPD) outlining the key aspects of adoption leave, pay, and employer obligations.
The Law Society – Employment Law Guide
https://www.lawsociety.org.uk/en/topics/employment/adoption-leave-and-pay
Legal guidance on adoption leave and pay, including employer compliance and legal considerations for employment law practitioners.
Working Families – Adoption Leave
https://workingfamilies.org.uk/articles/adoption-leave/
Practical advice for employers and employees on adoption leave, offering support and resources for working families balancing work and adoption.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
