19 March 2019 - Article
The current position
Rights to adoption leave and pay broadly mirror the rights that are given to birth mothers. However there are some major differences. The key rights and procedures are as follows.
Although it is now the norm for couples to adopt jointly, one member of the couple must elect to be the primary adopter and take adoption leave and pay. The other then has the option of taking paternity leave and pay on adoption – currently both ordinary and additional paternity leave and pay are available.
The primary adopter is entitled to 52 weeks of statutory adoption leave (‘SAL’) split into 26 weeks of ordinary adoption leave (‘OAL’) and, provided certain conditions are met, 26 weeks of additional adoption leave (‘AAL’). As with maternity leave the only difference between the two is the nature of the entitlement to return to work at the end of the leave period.
Employees wishing to take adoption leave must give their employer notice of their intention to take ordinary adoption leave no more than 7 days after, or if that is not practicable, as soon as reasonably practicable after the date on which they have been informed by the adoption agency that they have been successfully matched with a child for adoption. Employers are entitled to request that this notice is given in writing if they wish.
The notice should set out the date the employee wants to the leave to start. OAL can start on the date on which the child is placed, or on a specified date that is no more than 14 days before and no later than the day of placement. Employers must respond to the notice within 28 days notifying employees of the date on which their SAL will end. Employers can also ask for the name and address of the adoption agency, the notification date and the date on which the agency expects to place the child with the employee.
Terms and conditions during leave and return to work
During adoption leave an employee remains bound by the terms and conditions in the contract of employment and remains entitled to contractual benefits, save those relating to remuneration.
Employers are however obliged to maintain pension contributions at the employee’s normal rate of pay throughout any period of adoption leave during which the employee is receiving adoption pay. Any contributions the employee makes will be based on the amount of any statutory adoption pay the employee is receiving, unless the employee wishes to make up the shortfall.
On return to work after OAL, the employee has the right to return to the same job in which he or she was employed before the absence. After AAL an employee has the right to return to the same job, or, if it is not practicable for the employer to offer the same job, to another job which is suitable and appropriate for the employee.
An employee who does not want to return to work should give notice of resignation in accordance with the contract of employment.
Detriment, dismissal and redundancy
Employees who take or ask to take adoption leave are protected from suffering any detriment or dismissal as a result. Employees on adoption leave are also given priority in a redundancy situation where there is a suitable alternative role available.
Statutory adoption pay
Statutory adoption pay (‘SAP’) is payable for up to 39 weeks provided the employee has 26 weeks’ service, has high enough earnings and has elected to receive SAP. The current weekly rate of SAP is the lesser of a specified weekly rate that is revised each year (currently £138.18 for the tax year 2014/15) and 90% of normal weekly earnings.
SAP is a state payment paid by employers and then recouped as against national insurance contributions.
An employee may work for up to 10 ‘keeping in touch’ (KIT) days during adoption leave without jeopardising his or her right to SAP.
Differences from maternity leave
The regime is therefore similar to maternity leave in many respects. However the major differences are as follows:
There is a service requirement – SAL requires 26 weeks of continuous service at the date that the employee is matched with the child for adoption.
SAP is only paid at the flat rate (£138.18 or 90% of the employee’s normal weekly salary – whichever is lower) unlike maternity leave where the first 6 weeks are paid at 90% of an employee’s normal weekly salary or £138.18 – whichever is higher.
Only certain adoptions confer eligibility for the statutory rights. Private adoptions, adoption of a partner’s child or surrogacy arrangements (in which parents apply for a Parental Order to become the child’s legal parents) do not currently qualify for statutory adoption leave and pay.
In order to qualify for AAL, employees must meet further requirements including:
- the child’s placement for adoption having actually taken place; and
- OAL not having ended prematurely through a disrupted placement or dismissal of the employee.
What is changing?
The law is changing, meaning that adoption leave will mirror maternity leave provisions more closely:
- Adoption leave will no longer require a qualifying period of service and will become a day one right.
- Statutory adoption pay will match maternity pay, i.e. will be payable at 90% of normal salary for the first six weeks and the lower of 90% of normal salary and £138.18 (2014/15 figure) for up to a further 33 weeks.
- New provisions will entitle employees and agency workers who are proposing to adopt, either on their own or jointly with another person, to take time off work to attend adoption appointments in certain circumstances. Adoption appointments are appointments made by an adoption agency relating to a child being placed for adoption or for a fostering for adoption placement. See the note on ante-natal appointments for more details.
- Employees who adopt may also be eligible to opt in to the shared parental leave scheme if they meet the qualifying conditions.
- Adoption rights are being extended to all parents who enter into qualifying surrogacy arrangements and will encompass those who are in receipt of a parental order in respect of the child born as a result as well as those who are already eligible to adopt. See the note on surrogacy for more details.