Law guide: Employment

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Adoptive leave and pay

Adoptive leave and pay

Contents

Adoptive leave and pay

Adoption leave and pay allows one member of an adoptive couple to take paid time off work when their new child starts to live with them. Paternity leave and pay may be available for the other member of the couple, or the adopter's partner.

Adoption includes a child adopted from a surrogate mother where a couple have applied, or will apply, for a parental order. It also includes foster children who are adopted under the 'Fostering for Adoption' scheme run by local authorities.

Adoption and paternity leave are available whether a child is adopted from within the UK or from overseas.

The adoptive parent may take up to 26 weeks' ordinary adoptive leave (OAL) followed by a further 26 weeks' additional adoptive leave (AAL). The earliest start date for OAL is 14 days before the expected date of placement. An employee must take at least 2 weeks' OAL.

Like maternity leave, the adoptive parent will be immediately eligible for statutory adoptive leave as soon as they are employed.

Statutory adoption pay (SAP) is payable during the OAL. The standard rate of SAP is £140.98 from 2 April 2017.

Reclaiming Statutory Adoptive Pay

The amount of Statutory Adoptive Pay that an employer can recover from its National Insurance (NI) payment is 92% of the amount paid.

Notice of intention to take adoption leave

Adopters are required to inform their employers of their intention to take adoption leave within 7 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 need to tell their employers:

  • When the child is expected to be placed with them
  • When they want their adoption leave to start

Adopters can 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 must 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 have 28 days in which to respond to their employee's notification of their leave plans. An employer must 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.

The right to time off for an adoption appointment

Employees or agency workers who are proposing to adopt have a right to time off during their working hours to attend adoption appointments. The reason for the appointment must be so that the adopter can have contact with the child or children, or for other related purposes.

If adopting on their own, they will be entitled to paid time off for no more than 5 appointments. This also applies if the employee or agency worker is the main adopter of a joint adoption. The other adopter is limited to 2 unpaid appointments.

Each appointment is limited to a period of 6.5 hours.

An agency worker can be paid either by the hiring business or the employment agency.

Time can only be taken before a child has been placed. If more than one child is being adopted at the same time, the number of appointments and amount of time off will still be the same.

An employee who uses their right to take time off to attend an adoption appointment will no longer have a right to take paternity leave for that child.

Eligibility of agency workers

An agency worker will need to have worked for at least 12 weeks in order to have the right to attend adoption appointments. This is required by the Agency Workers Regulations 2010.

During the 12-week period, they must not have taken on a different role or had a break between assignments.

Making a request to attend an adoption appointment

If you state that you require the employee or agency worker to notify you before taking time off for an appointment, then within 14 days of the intended appointment they must provide you with written confirmation of the following:

  • If the employee or agency worker is the main adopter of a joint adoption, a declaration that they have chosen to take time off as the main adopter.
  • Whether they would like the time off to be paid or unpaid.
  • The appointment has been arranged by or at the request of the adoption agency.
  • The date and time of the appointment.

Dealing with a request

You could refuse a request for time off if it is reasonable to do so. However, there is no legal guidance on when it would be reasonable to do this. The employee will have a right to start a tribunal claim if their right has been unreasonably refused.

A tribunal claim must normally be made within 3 months from the date of the refused appointment. If successful, damages will be awarded for twice the amount that the employee would have been paid if they attended the appointment (usually calculated at an hourly rate).

Employees will be able to claim automatic unfair dismissal if the main reason for their dismissal is that they took time off to attend an adoption appointment. In addition, employees and agency workers are protected from being subjected to a detriment for taking time off to attend an adoption appointment, whether it is paid or unpaid.