Adoptive Parents Rights
5 April 2015
The right to Adoption and Paternity Leave and pay entitles eligible employees to take paid leave when a child is newly placed for adoption. The Paternity and Adoption Leave (Amendment) Regulations 2014 came into force on 5 April 2015 and made significant changes to adoption leave.
Adoption Leave and Adoption Pay will be available to individuals who adopt. Where two people are adopting jointly, one member of a couple can take Adoption Leave and the other can take Paternity Leave and Paternity Pay. The couple will need to choose who gets what.
Paternity Leave cannot be taken in relation to a child where Shared Parental Leave has already been taken. If an employee has exercised the right to paid time off to attend an adoption appointment he or she cannot then take Paternity Leave rather than Adoption Leave.
Adoption Leave and Pay eligibility
To qualify for adoption leave, an employee must be newly matched with a child for adoption by an approved adoption agency. Adoption leave and pay is not available in circumstances where a child is not newly matched for adoption, for example when a step-parent is adopting a partner’s children.
Right to Attend Adoption Appointments
The main adopter will be able to take time off to attend up to five appointments, while the secondary adopter will be entitled to take time off for up to two such appointments. The time off is "for the purpose of having contact with the child or for any other purpose connected with the adoption".
Length of adoption leave
Adopters will be entitled to up to 26 weeks ordinary adoption leave followed immediately by up to 26 weeks additional adoption leave, a total of up to 52 weeks leave.
They can choose to start their leave:
- From the date of the child’s placement (whether this is earlier or later than expected), or
- From a fixed date which can be up to 14 days before the expected date of placement.
- Leave can start on any day of the week.
- Only one period of leave will be available irrespective of whether more than one child is placed for adoption as part of the same arrangement.
Statutory Adoption Pay
During their adoption leave, most adopters will be entitled to Statutory Adoption Pay (SAP) from their employers. This is the same amount as paid for Statutory Maternity Pay (SMP).
- 90% of your average weekly earnings for the first six weeks
- The remaining 33 weeks is paid at the standard weekly rate of £139.58 (from 5 April 2015) or
- 90% of your average weekly earnings if this is lower than the standard weekly rate.
Notice of intention to take Adoption Leave
Adopters will be required to inform their employers of their intention to take adoption leave within seven days of being notified by their adoption agency that they have been matched with a child for adoption, unless this is not reasonably practicable. They will need to tell their employers:
- When the child is expected to be placed with them.
- When they want their adoption leave to start.
Adopters will be able to change their mind about the date on which they want their leave to start providing they tell their employer at least 28 days in advance (unless this is not reasonably practicable). They will have to tell their employer the date they expect any payments of SAP to start at least 28 days in advance, unless this is not reasonably practicable.
Employers will have 28 days in which to respond to their employees’ notification of their leave plans. An employer will need to write to the employee, setting out the date on which they expect the employee to return to work if the full entitlement to adoption leave is taken.
Employees will have to give their employer documentary evidence – a ‘matching certificate’ – from their adoption agency as evidence of their entitlement to SAP. Employers can also ask for this certificate as proof of entitlement to Adoptive Leave. Employees should ask their adoption agency for a matching certificate, which will include basic information on matching and expected placement dates.
Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise), throughout their 26 week ordinary Adoption Leave period. However, most adopters will be entitled to SAP during this period. If the employee has a contractual right to Adoption Leave as well as the statutory right, they may take advantage of whichever is the more favourable. Any adoption pay to which they have a contractual right reduces the amount of SAP to which they are entitled.
During additional adoption leave, the employment contract continues and some contractual benefits and obligations remain in force, for example compensation in the event of redundancy and notice periods.
Return to work after Adoption Leave
Adopters who intend to return to work at the end of their full adoption leave entitlement will not have to give any further notification to their employers. Adopters who want to return to work before the end of their adoption leave period, must give their employers 8 weeks notice of the date they intend to return.
Work during the Adoption Leave period – “Keeping In Touch Days”
Employees may, by agreement with their employer, do up to ten days’ work – known as “Keeping in Touch Days” – under their contract of employment during the adoption leave period. Such days are different to the reasonable contact that employers and employees may make with one another as during Keeping in Touch Days employees can actually carry out work for the employer, for which they will be paid.
Protection from detriment and dismissal
Employees will be protected from suffering detriment or unfair dismissal for reasons related to taking or seeking to take time off for adoption appointments and the right to return to work following paternity or adoption leave is amended to take account of the introduction of Shared Parental Leave. Employees who believe they have been treated unfairly will be able to complain to an Employment Tribunal.
Termination of placement
If, after the employee has begun Adoptive Leave, a child’s placement is terminated and the child returned to the adoption agency (or if the child dies), the employee will continue to be entitled to Adoptive Leave for up to eight weeks after the placement ends – provided this period of eight weeks does not extend beyond the date on which ordinary or additional Adoptive Leave would otherwise have ended.
Paternity Leave and Pay (Adoption)
Following the placement of a child for adoption, the right to Paternity leave and Pay will give eligible employees the right to take paid leave at the Statutory Paternity Pay rate to care for their new child or support the adopter.
Employees will need to satisfy the following conditions in order to qualify for Paternity Leave. They must:
- Have or expect to have responsibility for the child’s upbringing.
- Be the adopter’s spouse or partner.
- Have worked continuously for their employer for 26 weeks leading into the week in which the adopter is notified of being matched with a child.
Employers can ask their employees to provide a self-certificate (see below for further details) as evidence that they meet these eligibility conditions.
Length of Paternity Leave
Eligible employees will be entitled to take a block of one week or two weeks but if the employee chooses to take one week off, it is not possible to take the other week at a later stage. Leave can start on any day of the week on or following the child’s placement but must be completed within 56 days of the child’s placement. Only one period of leave will be available to employees irrespective of whether more than one child is placed together.
Statutory Paternity Pay
During their Paternity Leave most employees will be entitled to Statutory Paternity Pay (SPP) from their employers.
Notice of intention to take paternity leave
Employees will be required to inform their employers of their intention to take paternity leave within seven days of the adopter being notified by their adoption agency that they have been matched with a child, unless this is not reasonably practicable. They will need to tell their employers:
- When the child is expected to be placed.
- Whether they wish to take one or two weeks leave.
- When they want their leave to start.
Employees will be able to change their mind about the date on which they want their leave to start providing they tell their employer 28 days in advance (unless this is not reasonably practicable). Employees will have to tell their employers the date they expect any payments of SPP to start at least 28 days in advance, unless this is not reasonably practicable.
Employees will have to give their employers a completed self-certificate as evidence of their entitlement to SPP. Employers can also request a completed self-certificate as evidence of entitlement to paternity leave. The self-certificate must include a declaration that the employee meets certain eligibility conditions and provide the information specified above as part of the notice requirements. By providing a completed self-certificate, employees will be able to satisfy both the notice and evidence conditions for paternity leave and pay. Employers will not be expected to carry out any further checks.
Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise) throughout their paternity leave. However, most employees will be entitled to SPP for this period. If the employee has a contractual right to Paternity Leave as well as the statutory right, he/she may take advantage of whichever is the more favourable. Any paternity pay to which he/she has a contractual right reduces the amount of SPP to which he/she is entitled.
Return to work after Paternity Leave
Employees will be entitled to return to the same job following paternity leave.
Employees will be protected from suffering unfair treatment or dismissal for taking or seeking to take, Paternity Leave. Employees who believe they have been treated unfairly will be able to complain to an Employment Tribunal.
As of 5 April 2015, the right to take unpaid Parental Leave is extended to all parents of children under the age of 18. Please note that this form of unpaid Parental Leave is different to the Shared Parental Leave and Pay.
Adoption Leave is also available for local authority foster parents who are prospective adopters under the "Fostering for Adoption" scheme. Partners of these prospective adopters can take Paternity Leave.
Parents who have a child through a surrogacy arrangement are also eligible for Adoption Leave. The leave will be available to employees who are, or expect to be, the parents of a child under a parental order, where the child's expected week of birth begins on or after 5 April 2015. They will also be eligible for ordinary Paternity Leave and Pay and Shared Parental Leave and Pay, provided that they meet the eligibility criteria.