National Adoption Week: understanding statutory adoption provisions

This year, National Adoption Week was dedicated to those impacted by adoption whose stories are often less heard. In fact, it is often the case that employees wanting to take adoption leave find themselves in a position where their employers have considerably less knowledge about their rights than that of new parents wanting to take maternity or paternity leave.

Those couples in England and Wales who are adopting a child either through local authorities or other adoption agencies or in certain surrogacy and fostering cases are entitled (subject to eligibility) to statutory adoption leave and statutory adoption pay, as set out in sections 75A to 75D of the Employment Rights Act 1996 (ERA 1996).

The couple must elect which of them is to be the “adopter” for the purposes of taking the statutory period of leave and their partner or spouse may then be entitled to paternity leave. Alternatively, in some cases, either or both parents may be entitled to shared parental leave.

Where eligible, the adopter will be entitled to up to 52 weeks’ statutory adoption leave which is split into 26 weeks’ ordinary adoption leave (OAL) and 26 weeks’ additional adoption leave (AAL). They may also be entitled to statutory adoption pay (SAP) for up to 39 weeks.

To be eligible for OAL the adopter must have notified the relevant adoption agency of their agreement that the child should be placed with them. The adopter must then ensure they give the employer the required notice, and this must be done within seven days of being told by the adoption agency they have been matched with a child (or as soon as reasonably practicable thereafter, whenever that is not possible). When giving notice, the adopter must inform their employer of:

• the date on which the child is expected to be placed with them for adoption; and
• the date on which they choose their OAL to begin (which will either be the date the child is placed with the adopter or a specified date no more than 14 days before the date on which the child is expected to be placed and no later than the day of the placement).

Once notice is received and within 28 days of receipt, employers must notify the employee of the date on which their period of adoption leave will end and the date on which the employee is expected to return to work.

There is no formal requirement for either the employee’s notice or employer’s response to be given in writing, but it is often best practice for employers to request this to ensure accurate records are kept.

Employees may be able to take additional adoption leave (AAL). This begins on the day after the last day of the period of OAL and lasts for a further 26 weeks. Employees can take AAL so long as a child was placed with them for adoption, they took OAL in respect of that child and the period of OAL did not end prematurely because the placement was disrupted, or the employee was otherwise dismissed.

During a period of adoption leave, the employee’s contract of employment will continue (unless otherwise terminated by either party in accordance with the normal contractual provisions). Holiday and continuous service continue to accrue, for instance. One exception to this, however, is the employee’s entitlement to receive remuneration during periods of adoption leave. Rather than receiving normal pay during periods of adoption leave the employee will receive any statutory or contractual adoption pay they’re entitled to. Statutory adoption pay is paid as follows:

• For the first 6 weeks: 90% of the employee’s average weekly earnings;
• For the following 33 weeks: the lower of statutory adoption pay (currently £151.97 per week) or 90% of the employee’s average weekly earnings.

Where employees return from OAL they are entitled to return to the job in which they were employed before their absence. When returning from a period of AAL they are entitled to return to the job in which they were employed before their absence, unless it is not reasonably practicable for the employer to do so. Where that is the case, they are entitled to return to another job which is both suitable and appropriate for them to do in the circumstances.

Some employers have more favourable contractual terms that go beyond the requirements set out in legislation and in those cases the employer must ensure they follow the relevant contractual provisions to avoid breaching the contract of employment and inadvertently discriminating against the employee. In all cases, they are entitled to return to work on no less favourable terms and conditions than when they went on leave.

The statutory adoption provisions largely mirror the provisions for maternity and paternity leave and employers should be mindful of this generally and in specific cases where employees request adoption leave.