Adoption Leave Explained
4 minute read
Note: this is not legal advice, please don’t rely on it!
At JustParent, we are building a better system for the UK. Where even small employers can afford to offer parents more time with their newborns. Where small companies don’t lose their all-star talent to big corporations when it’s time for them to start a family and where the gender pay gap is a distant memory.
Surrogacy and adoption are amazing things: acts of selflessness on the parts of all parties, arranged and assessed with care and consideration, allowing children and prospective parents the chance for new lives together.
But, however laudable the outcome, as an employer, the rules around adoption and surrogacy leave and pay are a pain to navigate. You’ve got to balance the additional legal loopholes around proof of adoption or surrogacy with the staffing uncertainties linked to unknown dates of placement or arrival in the UK - there’s no 9 month run-up this time.
Doing this right for your employees is a golden opportunity for you as an employer to keep your best talent and look good in the process. JustParent is all about that opportunity. We've created a way for you to offer great parental leave which includes adoption and surrogacy, but without the risk that the costs spiral out of control.
But, if JustParent isn't for you yet, we’re still passionate about everyone getting it right.
We’ve broken down the rules and regulations around adoption leave below, including watchouts, the documents you need and what you need to know. And if you’d like further advice, or for us to manage the process for you, just let us know.
Consider us your new-parent leave fairy.
We want more companies to do new-parent leave right.
So how does it work?
Basically, Statutory Adoption Leave and Pay work similarly to Statutory Maternity and Paternity Leave and Pay - with one parent (regardless of sex) taking Statutory Adoption Leave of up to 52 weeks off, with the same rights, pay and conditions as Maternity Pay and Leave, and the other parent taking the 1-2 weeks’ Paternity Leave and Pay for fathers or partners. The alternative is that both parents split Shared Parental Leave.
The parent taking adoption leave (rather than the parent taking Paternity Leave) is also eligible to attend 5 adoption appointments after they’ve been matched with a child (this is paid time off work).
Surrogacy works similarly to the adoption process in terms of the legalities. The rules around leave and pay for the new parents (rather than the surrogate) are the same as those around adoptive parents in either case - so we’ll use the terms Statutory Adoption Leave and Pay throughout.
🔑 Key point: one parent can take Statutory Adoption Leave and Pay, which basically equates to the same as the Statutory Maternity allowance; the other parent must apply for common-or-garden Statutory Paternity Leave and Pay. The sex of either parent is irrelevant here. Alternatively, parents can apply for and split Shared Parental Leave.
👀 Watchout: if one of your employees is taking on the surrogate role herself, she must be afforded the same 52 weeks’ leave, pay and rights as other forms of maternity - what a surrogate does after the child is born has no impact on this right.
The main differences for you as an employer to be aware of are around the processes and paperwork that arise in the case of adoption or surrogacy.
Ok, so my employee is eligible. What’s next?
Then there are different laws around when adoption leave can start:
up to 14 days before the child moves in (UK adoption)
when the child arrives in the UK or within 28 days of this date (overseas adoptions)
the day the child is born or the day after (surrogacy)
Employees need to give you 28 days’ notice if they expect these dates to change. They also need to give at least 8 weeks’ notice if they want to change their return to work date.
So what are they entitled to?
The parent taking Statutory Adoption Pay is entitled to up to 39 weeks of pay whilst on leave. This is currently set at 6 weeks’ leave paid at 90% of average weekly earnings, followed by 33 weeks of Statutory Adoption Pay, which is either £156.66 a week, or 90% of their average weekly earnings - whichever is lower. Tax and National Insurance are still payable on this. The final 13 weeks of adoption leave are unpaid, unless your own company policy states otherwise.
What do I need to do?
You’ll need to keep records of proof of adoption, the date Statutory Adoption Pay started, the dates and amounts of Statutory Adoption Pay payments you’ve made, the payments you’ve reclaimed (see below), and information about any weeks you didn’t pay and why. You can record this using a system of your own or by using form SAP2.
And who’s paying?
HMRC will help you out here. As an employer, you are usually entitled to reclaim 92% of employees’ Statutory Adoption Pay from HMRC, and 103% if your business qualifies for Small Employers’ Relief. You can also ask for assistance if you cannot afford to make Statutory Adoption Pay payments through an online application for advance payment from HMRC.
To reclaim the money paid out to employees as Statutory Adoption Pay, you must calculate how much you are due to receive back from HMRC via your payroll software and then include these figures in an Employer Payment Summary, which you send to HMRC alongside your monthly Full Payment Submission.
This should be done by whoever deals with HR or payroll for you.
Anything else?
Remember the need to safeguard your employee’s rights whilst they are out of the office on leave. For instance, holiday leave is still accrued during any time off, and the employee has the right to return to the same role they left if they take up to 26 weeks off or less. If it’s longer, they maintain this right unless it is not reasonably practicable (for instance, if the role is now redundant). If this is the case, they are entitled to an alternative position with no less favourable pay, responsibility, terms and conditions than the role they left.
👀 Watchout: you are still required to pay Statutory Adoption Pay even if your company stops trading. As an employer, you are also obliged to make sure your adoption policy is clear and accessible to staff.
Is that it?
Yes.
In summary:
🔑 Key point: absolute minefield, but basically it’s very similar to the rules around maternity leave and pay with the additional hoop of providing proof of adoption to jump through. The good news? HMRC will pay (most of it) back.
👀 Watchout: for reasons that escape us, the following aren’t eligible for any form of adoption leave or pay (unless they are part of your own, better, adoption policy):
private adoption
becoming a special guardian or kinship carer
adopting stepchild
adopting a family member
🗒Documents: keep a record via form SAP2, or your own equivalent, for at least 3 years. If they’re adopting from overseas, you’ll also need form SC6. If you don’t think your employee is eligible, give them form SAP1.
Need to know: basically everything. Proof of adoption, the date Statutory Adoption Pay started, the dates and amounts of Statutory Adoption Pay payments you’ve made, the payments you’ve reclaimed (see below), and information about any weeks you didn’t pay and why.
If you’ve got this far, you’ve read over 1200 words on the ins and outs of adoption leave and pay.👏
If you’re keen to offer your staff something better than the statutory, but you’re worried about the potential costs, then JustParent is there for you. Get in touch with us to create a plan that works for you.
📖 Note on language
We've chosen our words based on the government's policy playbook to avoid ambiguity - with the caveat that we know that families come in all shapes and sizes. We believe parents are whoever loves and cares for a child. But for the sake of clarity:
- 'maternity' or 'mother' refers to the pregnant woman - the biological mother (including surrogates)
- 'paternity' or 'father' can refer to the baby's father; the husband or partner of the mother (or adopter) - this includes same-sex partners; the child’s adopter; or the intended parent (if you’re having a baby through a surrogacy arrangement)
📖 Note on accuracy
We have provided this as a helpful way to navigate the UK rules, but please don’t rely on it to make business decisions. Seek professional advice if you need it.
Also note that the UK rules might change quicker than we can update the information. The top of the page shows when we last updated the information.
If you spot anything that you think we’ve got wrong, or has since changed, please let us know, and you’ll be our bff.