Key points

  • From 6 April 2003, an employee who has been newly-matched with a child for adoption, or whose partner has been newly-matched with a child for adoption, or who is one of a couple who have been newly matched with a child for adoption (in each case, by an approved adoption agency), and who has been continuously employed by his or her employer for 26 weeks or more leading into the week in which notification of being matched occurred, has the right to take up to 26 weeks' ordinary adoption leave, followed immediately by up to 26 weeks' additional adoption leave. An employee with average earnings of £75 or more per week will qualify to be paid statutory adoption pay (SAP) during his or her ordinary adoption leave period. The relevant legislation is to be found in the Paternity & Adoption Leave Regulations 2002 which came into force on 8 December 2002.


    Note

    By definition, the right to adoption leave is not available to a step-father or mother who adopts his or her partner's children.

  • It is as well to point out that the right to take up to 52 weeks' adoption leave is available to those eligible employees only who were informed on or after 6 April 2003 that they had been matched with a child for adoption - unless the notification occurred before 6 April 2003, but the child was not actually placed with them (or their partners) until 6 April 2003 or later. Furthermore, the right to adoption leave is available to one member only of a couple (whether married or otherwise) who have had a child placed with them for adoption - in which event, it is up to the adoptive parent or parents to decide which of them takes the adoption leave. However, the other partner may be entitled to take one or two weeks' paid paternity leave during the eight weeks following adoption and up to 13 weeks' unpaid parental leave, as to which please turn to the sections on Parental leave and Paternity leave elsewhere in this handbook.

Disrupted placement in the course of adoption leave

  • An employee who has already begun a period of adoption leave, in anticipation of being placed with a child, may remain on adoption leave for up to eight weeks (or, where appropriate, for a further eight weeks) if, for one reason or another, the expected placement does not occur or if the child dies or is returned to the adoption agency under section 30(3) of the Adoption Act 1976 or section 30 of the Adoption (Scotland) Act 1978.

Statutory Adoption Pay

  • An employee who qualifies for adoption leave, and who earns an average of £77 or more per week (during the period of eight weeks ending with the last payday before the end of the week in which notice of being matched for adoption was given) will normally qualify for up to 26 weeks' Statutory Adoption Pay (SAP) during his or her ordinary adoption pay period. The adoption pay period is the period that begins on the Sunday immediately following the day on which an employee begins his or her ordinary adoption leave.

  • There are two rates of SAP, the higher rate and the lower rate. The higher rate is an amount equivalent to nine-tenths of the employee's average weekly earnings and is payable for each of the first six weeks of the adoption pay period. The lower rate, payable for the remaining (up to) 20 weeks, is £100 a week or 90 per cent of the employee's average weekly earnings, whichever is the lower of those amounts. An employer who has lawfully paid SAP to an employee may reclaim 92 per cent of the amount paid by deducting the amount in question from payments of employees' and employers' NI contributions made to the Collector of Taxes at the end of each tax month. Employers who are eligible for small employers' relief may recover 100 per cent of the amount of SAP paid, plus an additional amount (currently 4.5 per cent) in compensation for the employer's portion of NI contributions paid on SAP.

Notification procedure

  • To exercise his (or her) right to adoption leave, an employee must (within seven days of the date on which he was notified of having been matched with a child for adoption) inform his employer (in writing, if requested to do so) of his intention to take ordinary adoption leave, specifying:

    1. the date on which the child is expected to be placed with him for adoption; and

    2. the date on which he has elected to take adoption leave (which may begin either on the date on which the child is placed with him for adoption or no more than 14 days before the expected placement date).

    Where his employer requests it, the employee must also produce documentary evidence (letters, certificates, etc) issued by the adoption agency confirming the name and address of the agency, the name and date of birth of the child, the date on which the agency informed him that he had been matched with that child; and the date on which the agency expects to place the child with him.

  • Employees who have correctly notified their employers of the date on which they intend to start their adoption leave may change their minds, so long as they inform their employers at least 28 days beforehand of the revised start date.

  • An employer, who has been correctly notified of the date on which an employee intends to start his or her adoption leave, must write to the employee in question, within the next 28 days, setting out the date in which the employee would be expected to return to work on completion of his or her full entitlement to adoption leave.

Statutory rights during and after adoption leave

  • While absent from work on adoption leave, an employee has rights similar to those available to employees on maternity leave (as to which, see Maternity rights elsewhere in this handbook). In short, an employee absent from work on adoption leave has the right:

    • if made redundant during his or her ordinary or additional adoption leave period, to be offered suitable alternative employment under a new contract of employment to begin on the day immediately following the day on which his or her previous contract of employment came to an end;

    • to the continuation of certain contractual rights and duties while absent from work on adoption leave (save for the right to be paid his or her normal wages or salary while absent on adoption leave);

    • to return to work after adoption leave in his or her original (or in a substantially equivalent) job;

    • to ask for more flexible working arrangements on his or her return to work (as to which, see Flexible Working elsewhere in this handbook); and

    • not to be dismissed, selected for redundancy, victimised, or subjected to any other detriment for exercising or asserting his or her rights under the Paternity & Adoption Leave Regulations 2002.

  • Employees on adoption leave, who wish to return to work earlier than the date on which they are otherwise due to return, must notify their employers of the proposed earlier date of return at least 28 days beforehand. Should they fail to do so, their employers are within their rights to delay their return until those 28 days have elapsed or until the date on which they are otherwise due to return, whichever occurs sooner.

Claims and remedies

  • Eligible employees who are denied their entitlement to adoption leave, or who are dismissed, selected for redundancy, victimised, or subjected to any other detriment for asserting their rights under the Paternity & Adoption Leave Regulations 2002, may complain to an employment tribunal and will be awarded appropriate compensation if their complaints are upheld.

    See also Flexible working, Maternity rights, Parental leave, and Paternity leave elsewhere in this handbook.

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