Adoption leave and pay

Topic Index
Overview
Adoption leave
Notice
Rights during adoption leave
Keeping in touch
Returning to work
Adoption pay
Resources

Adoption rights are available to individuals who adopt and/or to one member of a couple where a couple adopts jointly.
The partner of an individual adopter may be entitled to paternity leave and pay.
Similarly, the partner of a couple adopting jointly who does not take adoption leave may be entitled to paternity leave.
Adopters of children placed for adoption on or after 3 April 2011 benefit from additional adoption pay and leave.

There are currently two types of adoption leave available to employees: ordinary adoption leave (OAL) of 26 weeks and additional adoption leave (AAL) of 26 weeks.
To benefit from adoption leave the employee must be the child's adopter; have at least 26 weeks' continuous employment ending with the week in which the employee is notified of a match; have notified the agency that they agree that the child should be placed with them and the date of the placement; and have given notice to the employer of their intention to take adoption leave.
OAL can start on the placement date or on a fixed date up to 14 days before the placement date and continues for 26 weeks.
AAL starts on the day after the last day of OAL and continues for a further 26 weeks.

An adopter must notify the employer of their intention to take OAL within 7 days of being notified of a match, unless this is not reasonably practicable. This notice, in writing if the employer requests it, must confirm the date the child is expected to be placed with them and the date the employee intends OAL to start.
The employer can also request a matching certificate or similar documentary evidence issued by the adoption agency which gives the name and address of the agency, the date on which the employee was notified of having been matched with the child, and the expected placement date.
An adopter can change their mind about the date OAL is to start provided at least 28 days' notice is given to the employer (unless this is not reasonably practicable).
The employer then has 28 days in which to respond. The employer must write to the employee setting out the date they expect the adopter to return to work if the full entitlement to adoption leave is taken.

An employee on OAL and AAL has the right to the continuation of all contractual terms and conditions, except pay (unless the contract says otherwise). This includes, for example, accrual of holiday entitlement, retention of company car, pension rights, etc. Although not entitled to pay, the employee may qualify for statutory adoption pay.
When an employee's position becomes redundant whilst on adoption leave they are entitled to be offered any suitable alternative employment.
An employee is entitled not to suffer any detriment because they have taken or sought to take adoption leave.
An employee is entitled not to suffer any detriment for failing to return to work after adoption leave where the employer did not notify the employee of the date on which the leave would end and the employee reasonably believed that the leave had not ended or where the employer gave the employee less than 28 days' notice of the date on which the leave would end and it was not reasonably practicable for the employee to return on that date.
Dismissal in any of these circumstances will be automatically unfair.

Employers can make reasonable contact with the employee from time to time during their adoption leave, e.g. to discuss plans for returning to work or to update the employee on developments at work during their absence.
The employee can agree to work for the organisation (or to attend training) for up to 10 days during either OAL or AAL without that work bringing the period of adoption leave to an end and without loss of statutory adoption pay.
These are known as 'keeping-in-touch' days. Any work carried out on such a day constitutes a day's work for these purposes and any keeping-in-touch days worked do not extend the period of adoption leave.
An employee is not required to carry out any work during their adoption leave and there is no obligation on either party to make use of the keeping-in-touch days.

An employee who has taken adoption leave is entitled to return to the job in which they were employed before their absence on no less favourable terms and conditions (including remuneration).
In the case of AAL, if it is not reasonably practicable for the employee to return to the same job then they should be offered another job, with the same status, benefit and grade.
An employee who wants to return to work before the end of their adoption leave period must give their employer at least 8 weeks notice on the date they intend to return.
If the employee returns to work in a part-time role the impact of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 needs to be considered.
Working parents (which includes adopters) of children aged 16 and under (or 18 in the case of disabled children) may also have the right to request flexible working patterns.

An employee who qualifies and who has average weekly earnings equal to or greater than the lower earnings limit for NIC purposes (£102 from April 2011) will normally qualify for up to 39 weeks' statutory adoption pay (SAP).
The rate of SAP is £128.73 per week (from April 2012: £135.45) or 90% of average weekly earnings if this is less.
Employers can reclaim 92% of the amount of SAP paid.
Where an employee leaves employment for whatever reason (including dismissal) before the adoption pay period begins, they are still entitled to receive SAP. The payments will start on the date of placement or if termination is on or within 14 days before the expected date of placement, on the day after the last day of employment. In these cases the notification requirements do not apply.