• Ordinary Adoption Leave, Additional Adoption Leave and Statutory Adoption Pay are available to employees who qualify who adopt a child or who are having a baby through a surrogacy arrangement.
• Only one member of a couple is entitled to the leave. It is up to the couple to decide who will be the adopter for adoption leave and pay purposes.
• Adoption Leave lasts for up to 52 weeks.
• Statutory Adoption Pay is for up to 39 weeks.
• The first two weeks is compulsory adoption leave. After then an adopter can end adoption leave/pay early and take up to 50 weeks’ Shared Parental Leave (SPL) and up to 37 weeks’ Statutory Shared Parental Pay (ShPP) and/or transfer any untaken adoption leave and pay to their partner.
• Statutory Adoption Pay is paid by the employer and reimbursed by HM Revenue and Customs.
• An employer must not subject an employee to a detriment or dismiss an employee for a reason relating to adoption leave.
• Statutory Paternity Leave and Statutory Paternity Pay is available to the adopter’s spouse, partner or civil partner, if they qualify.
• Eligible employees returning to work from Adoption Leave are entitled to take Parental Leave, Time Off For Dependants and they have the right to request flexible working.
Ordinary Adoption Leave and Additional Adoption Leave
Ordinary Adoption Leave and Additional Adoption Leave (together known as Adoption Leave) are available to some employees who adopt a child or who are having a baby through a surrogacy arrangement.
Only one member of a couple is entitled to Adoption Leave. It is up to the couple to decide who is the primary adopter for adoption leave and pay purposes.
The other member of the couple may be entitled to Statutory Paternity Leave and Statutory Paternity Pay, or Shared Parental Leave and Shared Parental Pay. For more information on Statutory Paternity Leave and Statutory Paternity Pay and Shared Parental Leave and Shared Parental Pay refer to the Paternity leave and pay and Shared Parental Leave and pay section of this toolkit.
An employee is taken to have been notified of having been matched with a child on the date on which they receive notification of the adoption agency’s decision.
An employee who is entitled to Ordinary Adoption Leave is entitled to Additional Adoption Leave so long as the child was placed with them for adoption, they took Ordinary Adoption Leave in respect of the child and their Ordinary Adoption Leave did not end prematurely either because they were dismissed or because the notified placement of the child did not in fact take place.
Ordinary Adoption Leave consists of 26 weeks’ leave. Additional Adoption Leave also consists of 26 weeks’ leave. Additional Adoption Leave follows on from Ordinary Adoption Leave, making a total of 52 weeks’ leave.
The employee can choose to start their leave on the date of the child’s placement or up to 14 days before the expected date of the placement. The employee can vary the start of leave provided he or she gives 28 days’ notice or as soon as reasonably possible.
Statutory Adoption Pay (SAP)
Statutory Adoption Pay (SAP) is paid for 39 weeks. It is paid by employers and reimbursed by HM Revenue and Customs. The earliest it can be paid is 14 days before the expected date of placement. To qualify for SAP employees must have at least 26 weeks’ continuous employment with us ending with the Qualifying Week (the week in which the adoption agency or local authority notified the employee of a match, or the 15th week before the Expected Week of Childbirth).
The first six weeks’ SAP are paid at 90% of your average earnings and the remaining 33 weeks are paid at a standard rate of £172.48 per week (April 2023-2024) or 90% of average weekly earnings if that is less. Tax and National Insurance contributions are deducted in the normal way. Employees who have average weekly earnings of less than £123 (April 2023-April 2024) are unlikely to qualify for SAP.
Notice of leave and pay
An employee must give their employer notice of their intention to take adoption leave within seven days of receiving notification from the adoption agency that they have been matched with a child, or as soon thereafter as reasonably possible. The employee must inform their employer (in writing if requested by the employer) of the date they would like to start their leave and when the child is expected to be placed with them.
Once the employer has been informed of these dates, the employer must write to the employee within 28 days stating the date on which they expect the employee to return to work. The employer must assume that the employee will take his or her full leave entitlement.
If an employee is also claiming SAP, he or she should also notify his or her employer (in writing if so requested) of the date on which they expect payment to start and the expected date of placement. Employees should give their employers such notice at least 28 days before they want SAP to start, or as soon as reasonably possible thereafter.
If the employee has chosen that their pay should begin on the date the child is placed for adoption with them, they must also inform their employer of the actual date of placement, as soon as reasonably possible after it has happened.
Under no circumstances is an employee who is entitled to adoption pay required to repay SAP if she or he does not return to work after adoption leave.
Employers can ask employees for certain documentary evidence issued by the employee’s adoption agency to determine if the employee is eligible for leave. Employers must request this documentary evidence if the employee is claiming SAP. A matching certificate, issued by the adoption agency, can be used for this purpose. The employee must also give a declaration that he or she has chosen to receive SAP and not Statutory Paternity Pay.
Entitlements during Adoption Leave
Employees are entitled to the benefit of their normal terms and conditions of employment during Ordinary and Additional Adoption Leave, as if they were still at work, except for terms relating to remuneration. Most adopters will be entitled to Statutory Adoption Pay instead.
An employee is entitled to their employer’s usual pension contributions during Ordinary Adoption Leave or any time they are receiving any Statutory Adoption Pay or contractual adoption pay.
An employee continues to qualify for their statutory employment rights (such as the right to statutory redundancy pay) during adoption leave and the time spent on Ordinary Adoption Leave and Additional Adoption Leave counts towards qualifying service for such rights. The period of adoption leave also counts for assessing seniority, pension rights and other payments based on length of service (such as pay increments) under the contract of employment.
Contact during Adoption Leave
During the adoption leave period, an employer may make reasonable contact with an employee. The frequency and nature of the contact will depend on a number of factors including the employee’s post, what has been agreed and what important information arises. Employers must in any event keep employees informed of promotion opportunities and other information relating to their role or the employer’s business that would otherwise normally be communicated to them if the employee was not on Adoption Leave. What constitutes “reasonable” will depend on the circumstances and the employee. It is good practice to agree in with the employee in advance, how the employer will communicate with the employee during Adoption Leave.
Keeping In Touch Days
Employees may, by agreement with their employer, undertake up to 10 days’ work under their contract of employment during adoption leave without bringing the adoption leave to an end or losing SAP. “Keeping in touch” days may be worked at any time during adoption leave. Any work done on any day during the adoption leave period will count as a whole day towards the 10-day limit. The type of work that the employee undertakes is a matter for agreement between employer and employee. hey may be used for any activity which would ordinarily be classed as work under the employee’s contract of employment.
An employee is entitled to be paid for “keeping in touch” days. The rate of pay is a matter for agreement with the employer, and may be set out in the employment contract or agreed on a case-by-case basis. However, you will need to bear in mind your statutory obligations relating to equal pay and the National Minimum Wage.
If the employee is receiving SAP, they should continue to receive it. An employer may offset the amount of SAP paid towards the contractual pay agreed by the two parties but you should let your employee know if you intend to do this. The employer will be able to recover SAP in the normal way.
Claiming SAP from HM Revenue and Customs
The amount which employers pay by way of SAP can be deducted from payments to HM Revenue and Customs for any PAYE tax, student loans and National Insurance contributions.
Small Employers’ Relief
The amount an employer can deduct depends on whether you are entitled to Small Employers’ Relief. If you are entitled to Small Employers’ Relief, you can deduct 103% of the SAP (and other statutory parental payments) you have paid to your employees. If not, you can deduct 92% of the SAP you pay.
Small Employer’s Relief is available to employers if your Class 1 National Insurance contributions for the last complete tax year before the qualifying week were £45,000 or less. You can deduct your statutory payments from your PAYE and National Insurance liabilities.
Employers may also apply to HM Revenue and Customs for an advance payment in respect of SAP if you will find it difficult to pay.
Employers can also call HM Revenue and Customs Employers Helpline on 0300 200 3500 for help with paying and reclaiming SAP.
It is obligatory for employers to keep records for three years after the end of the tax year in which the employee ended their Adoption Pay period.
Protection from Dismissal, Redundancy and Unfair Treatment
An employee must not be dismissed, made redundant or detrimental treatment because they intend to take, are taking or have taken adoption leave. This right applies regardless of the employee’s length of service.
An employee’s long-term position at work must not be affected by their absence on adoption leave. For example, they must not be treated any less favourably in terms of promotion prospects, pay reviews, appraisals, dismissal and consultation in relation to redundancy.
An employee must not suffer a detriment or be dismissed for not agreeing to work KIT days or for asking for such work.
An employee has the right to be offered a suitable alternative vacancy, if one is available, if their job is at risk of redundancy during adoption leave.
Good Practice: Occupational Adoption Pay
It is good practice to consider whether you can offer adoption pay over and above the statutory minimum. Any contractual or occupational pay can top up the SAP which is reclaimed from HMRC.
You can make it a term of the employee’s contract that any occupational adoption pay (over and above the SAP element) is to be repaid if the employee does not return to work for a reasonable period after their Adoption Leave has ended.
Any such clause should be included in your policies e.g. Adoption policy and Paternity Policy. An employee should be allowed to repay any occupational adoption pay in reasonable and affordable instalments if they are unable to return to work.
An employee is ‘back at work’ once their adoption leave period has ended, even if they are on sick leave, annual leave or unpaid leave or have reduced or changed their hours of work.
A model Adoption Policy is part of this toolkit.
Adoption pay calculator
ACAS guide to adoption leave and pay
• Employment Rights Act 1996
• Paternity and Adoption Leave Regulations 2002
• Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006
• Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008
• Social Security Contributions and Benefits Act 1992
• Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002
Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.