Statutory Adoption Pay and Leave Eligibility
Not all employees will qualify for both leave and pay. To qualify for Statutory Adoption Leave they will need to:
- Provide you with the correct notice (see below).
- Have employment status (e.g. with an employment contract).
Note: Proof of the adoption or surrogacy is only required if the employer asks for it.
Employees who are adopting a child from overseas with a partner also need to fill in and sign form (SC6). Doing so confirms they will not be taking paternity leave or pay.
To qualify for Statutory Adoption Pay your employee will need to:
- Have ‘continuous employment‘ for a minimum of twenty six (26) weeks up to any of the days that fall in the week they got matched with a child.
- Be on payroll and be earning at least £123 a week in an 8-week period (also called the ‘relevant period’).
- Provide the correct notice and some evidence that the adoption took place.
Important: The adoption pay calculator is a tool used to work out an employee’s eligibility. Employers can also use it to determine the matching week, notice period, relevant period, and adoption pay.
Coronavirus Job Retention Scheme
Employees may still qualify provided they usually earn an average of at least £123 a week, even if they earned less in some weeks due to being ‘on furlough’.
You can read further guidance about employee circumstances that affect payment and the action to take (e.g. if your employee gets a pay rise, becomes sick, dies, leaves your employment, or the child dies).
Adoption Pay when Adopting a Child from Overseas
The only difference for employees adopting from overseas is being continuously employed for a period of at least 26 weeks at the beginning of the week when their pay starts.
They would also need to sign the form titled ‘Adopting a child from abroad (SC6)‘ if the adoption takes place with a partner.
Pay for an Employee in a Surrogacy Arrangement
The only difference for employees in surrogacy arrangements is being continuously employed for a period of at least 26 weeks up to one of the days in the 15th week before the baby’s due date.
They would also need to give you proof of their intention to become the legal parent of the baby – if you ask for it.
Employees will not qualify if they:
- Adopt a stepchild or family member.
- Become a special guardian or kinship carer.
- Make a private adoption (e.g. without getting permission from an authority or an adoption agency in the United Kingdom).
Entitlement for Statutory Adoption Pay and Leave
Statutory Adoption Leave
The maximum time off employees can take for Statutory Adoption Leave is fifty two (52) weeks. The term used for the first 26 weeks is ‘Ordinary Adoption Leave’ and the last 26 weeks will be ‘Additional Adoption Leave’.
Employees can start Statutory Adoption Leave:
- The date that the child starts living with them or no later than fourteen (14) days before the expected placement date (for UK adoptions).
- Once they have been matched with a child for placement with them by a recognised UK adoption agency.
- The day that the child is born or the following day (for parents using a surrogacy arrangement).
- When the child arrives in the United Kingdom or no later than twenty eight (28) days of this date (only for overseas adoptions).
Statutory Adoption Pay (SAP)
The current Statutory Adoption Pay for employees in the United Kingdom is (after deduction of tax and National Insurance):
- 90% of gross average weekly earnings for the first six (6) weeks.
- Either £156.66 a week or 90% of gross average weekly earnings for the next thirty three weeks (whichever is lower).
HM Revenue and Customs (HMRC) produce further guidance explaining how different employment types affect what you pay (e.g. for agency workers, directors, and educational workers).
Note: You can use the GOV.UK maternity and paternity online tool to calculate an employees adoption leave and pay.
Offering More than the Statutory Amounts
Employers who have a company scheme for adoption leave and pay can choose to offer extra leave or pay. But, you must ensure the policies of the scheme are clear and available to your staff.
Note: UK employment law protects employee rights when on leave after adopting a child (e.g. holidays, pay, and returning to a job). Furthermore, you must still pay Statutory Adoption Pay if you cease trading.
Employee Notice Periods
Statutory Adoption Leave
There are several important details that employees need to tell their employer within seven (7) days of getting matched with a child, such as:
- How much leave they would like to take and the start date.
- The ‘date of placement’ (meaning the expected or actual date that the child gets placed with them).
Employers have 28 days to write to employees to confirm their leave start and end date. But, the rules differ for employees making an adoption from overseas or surrogacy arrangements.
Adoption Leave when Adopting a Child from Overseas
Employees who adopt a child from abroad must inform their employer of (within 28 days of getting their ‘official notification’):
- The date of the notification.
- When they expect the child to arrive in the United Kingdom.
Note: Employees have 28 days of the Sunday in their 26th week in situations where they worked for less than 26 weeks.
Leave for Employees Using a Surrogacy Arrangement
Employees using surrogacy arrangements need to inform their employer when the baby is due and when they want their leave to start – at least fifteen (15) weeks before the due date. The employer can ask for this to be in writing.
Note: In either of these cases, employers must write to employees within twenty eight (28) days confirming their leave start and end date.
Making Changes to Adoption Leave Dates
Employees need to tell employers about changes to leave dates at least 28 days before their original start date or the new start date (whichever comes first).
Employers need to write to employees if they need to amend the start and end dates for leave. They must also give you eight (8) weeks of notice to change their return date.
Statutory Adoption Pay
As a rule, employees need to provide twenty eight (28) days of notice to receive Statutory Adoption Pay. It can be less if the time between the child getting matched and placed is less than 28 days. Either way, the notice can be verbal – unless the employer requests it to be in writing.
Statutory Adoption Pay: Proof of Adoption
Written proof is not required for Statutory Adoption Leave (unless requested). But, employees need to provide proof to qualify for Statutory Adoption Pay.
When adopting, the proof that employers must receive (and keep records of) needs to show:
- Name and address of the employee and the adoption agency used.
- Date the child got matched (e.g. the matching certificate).
- Actual (or expected) date of placement, such as a letter from the adoption agency.
- For overseas adoptions:
- Date the child arrived in the United Kingdom (e.g. a flight ticket).
- UK authority ‘official notification’ that confirms the parent has permission to adopt.
When Using Surrogacy Arrangements
Proof is only needed for leave or pay in a surrogacy arrangement if you ask your employee to provide it. If so, they must give you a ‘statutory declaration’ (a written statement) that confirms:
- They intend to make an application for a parental order (e.g. become a child’s legal parent) during the six (6) months following the birth of the baby.
- They expect the order will be granted (e.g. they have no convictions involving children, the birth mother or father agree to the surrogacy arrangement).
Refusing Adoption Pay or Leave
According to UK employment legislation, employers cannot refuse Statutory Adoption Leave. Furthermore, they cannot change the amount of leave that their employees want as time off from work.
You can choose to delay the start date in cases of adoption (e.g. they do not have a reasonable excuse for giving the wrong amount of notice). If so, write to your employee within 28 days of their leave request to delay their start date.
Employers can refuse Statutory Adoption Pay to employees who do not qualify using a non-payment explanation form (SAP1) within seven (7) days of the decision.
Keeping Records for HMRC
HM Revenue and Customs require employers to keep records (e.g. using record sheet SAP2) for at least three (3) years from the end of the relevant tax year. The records must include:
- Evidence used as proof of adoption.
- Start date for Statutory Adoption Pay and what payments were made (including the dates).
- Details of any statutory payments you reclaimed.
- Information about any weeks you did not pay and the reason for not doing so.
Note: If you can get financial help with statutory pay you may be able to reclaim 92% of payments and apply for an advance if you are unable to make the payments.