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At the start of August, we asked our LinkedIn audience the following question: are parents that have adopted a child entitled to maternity leave? In essence, we asked if adoption leave existed.
A high percentage of our voters chose ‘yes,’ meaning that most seemed to think that adoption does entitle you to some form of leave. To settle the debate, our employment law expert Joseph Navas has answered all the most commonly asked questions around adoption leave, in the aim of settling the debate.
So, does adoption make you eligible for leave? Let’s find out.
What is adoption leave?
If you’re employed and adopt a child, you may be entitled to paid time off work. This is referred to as Statutory Adoption Leave and Pay.
Statutory leave refers to the legal minimum that an employer must pay you during your time off.
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Does adoption leave offer the same rights as maternity leave?
Simply put – yes. Employees that are adopting a child are entitled to the same rights as an employee that is having a child.
You’ll receive the same pay and time off for both types of leave.
When am I eligible for adoption leave?
You may be entitled to take adoption leave if you are:
- Adopting a child
- Fostering a child
- Adopting a child from overseas
- If you’re in a surrogacy agreement
You won’t be eligible for adoption leave or pay if you are:
- Arranging a private adoption
- Adopting a stepchild or family member
- Becoming a special guardian or kinship carer
If you are a freelancer or agency worker, you may be eligible for statutory adoption pay, but you and your employer will have to agree on the time you can take off for leave.
How long does adoption leave last?
Adoption leave can last up to 52 weeks.
The first 26 weeks are known as Ordinary Adoption Leave, whilst the remaining 26 are Additional Adoption Leave.
The leave can start:
- When you have been matched with a child to be placed with them by an adoption agency (in the UK)
- The date the child starts living with you or up to 14 days prior to this
- The day the child is born or the day after (for surrogacy arrangements)
It is important that you always give your employer as much notice as possible when applying for leave.
What other requirements do I need to meet?
To receive payments whilst on adoption leave, you must:
- Have worked at your company for at least 26 weeks by the week you’re matched with a child (or, if you’re in a surrogacy agreement, the 15th week before the due date)
- Give your employer at least 28 days’ notice before you go for adoption leave and want your payments to start
- Earn at least £123 a week on average before tax
- Show your employer proof of adoption (such as an adoption certificate)
If you are not eligible for adoption pay, there may be other ways to support yourself financially, such as Universal Credit.
Can my partner take time off too?
Only one of you or your partner can get adoption leave and pay.
However, the partner that does not receive leave may instead be eligible for paternity leave and pay. Moreover, you both may be able entitled to Shared Parental Leave and Pay instead.
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How much is statutory adoption pay?
Statutory adoption pay is the same as maternity pay. It lasts for 39 weeks.
Your pay starts when your adoption leave begins. The amount you’ll receive differs depending on what stage of leave you are currently at.
| Length of Statutory Leave | Statutory Adoption Pay |
|---|---|
| First 6 weeks | 90% of your average weekly earnings before tax |
| The next 33 weeks | £156.66 per week or 90% of your average weekly earnings (whichever is less) |
| The remaining 13 weeks | Unpaid |
Tax and National Insurance will still apply to any adoption pay income you receive.
Alternatively, your company may offer a more generous scheme for adoption pay than what the government offers. Check with your employer to see how much you may be eligible for.
What if I’m not entitled to adoption pay?
If you’re not eligible for adoption pay, your employer must give you a SAP1 form detailing why you are ineligible.
You should check with your local council regarding ways you can receive financial support during adoption leave. Moreover, you may be eligible for Universal Credit or other benefits for families.
If you think that your employer has made a mistake or is intentionally stopping you from receiving pay, you can ask the HMRC to make a formal decision.
Frequently asked questions.
Below, we’ve tried to clarify any misconceptions around your right to adoption leave and your rights when away from work.
How long do I have to be employed for to be entitled to take adoption leave?
You are entitled to adoption leave from the first day you start work.
Are my normal working rights the same whilst away on leave?
All of your contractual rights are the same whilst you are on adoption leave. This excludes the right to normal pay, as you’ll be covered by adoption pay.
This includes your right to pay rises, accrual of holiday and return to work.
What happens if I'm selected for redundancy?
If you’re selected for redundancy whilst off, your employer should offer any suitable vacancies to you with similar terms and conditions.
Similar to being on maternity leave, you should be prioritised over other roles when facing redundancy.
Does my employer have to offer reasonable adjustments when I return from leave?
Your employer must offer reasonable adjustments for you if your job is no longer practical for you after adoption leave.
For more information on reasonable adjustments, visit our blog on pregnancy discrimination.
What if I face unfair treatment or dismissal?
If you are facing unfair treatment due to your adoption leave, you are fully protected. If you are experiencing this, you may be able to bring a claim to the employment tribunal.
How can Britton and Time Solicitors help?
Whether your matter is involving adoption leave or another area of employment law, we’ve got you covered. With an initial consultation of £108 inclusive of VAT, we will provide:
- Unlimited time to go through the details of your case and ask any questions you may have
- An overview of your legal standpoint and your available options
- A precise time and fee estimate for your case
To arrange your initial consultation with one of our solicitors, simply call us on 020 3007 5500 or send us an email directly at [email protected]
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