Statutory Adoption Pay and Leave: employer guide

Entitlement

When an employee takes time off to adopt a child or have a child through a surrogacy arrangement they might be eligible for Statutory Adoption Pay and Leave.

Statutory Adoption Leave

Employees can take up to 52 weeks’ Statutory Adoption Leave. The first 26 weeks is known as ‘Ordinary Adoption Leave’, the last 26 weeks as ‘Additional Adoption Leave’.

Leave can start:

• on the date the child starts living with the employee or up to 14 days before the expected placement date (UK adoptions)
• when an employee has been matched with a child to be placed with them by a UK adoption agency
• when the child arrives in the UK or within 28 days of this date (overseas adoptions)
• the day the child’s born or the day after (parents in surrogacy arrangements)

Statutory Adoption Pay

Statutory Adoption Pay (SAP) for employees is:

• 90% of their gross average weekly earnings for the first 6 weeks
• £139.58 a week or 90% of their gross average weekly earnings (whichever is lower) for the next 33 weeks

Tax and National Insurance need to be deducted.

Some employment types like agency workers, directors and educational workers have different rules for entitlement.

Extra leave or pay

You can offer more than the statutory amounts if you have a company scheme for adoption leave and pay. You must make sure your scheme’s policies are clear and available to staff.

Employment rights

An employee’s employment rights (like the right to pay, holidays and returning to a job) are protected during adoption leave. You still have to pay Statutory Adoption Pay even if you stop trading.

Eligibility

Statutory Adoption Leave

Employees must:

• give you the correct notice
• be classed as an employee

They don’t have to give you proof of the adoption or surrogacy unless you request it.

Statutory Adoption Pay

Employees must:

• have worked for you continuously for at least 26 weeks by the week they were matched with a child
• be on your payroll and earn at least £112 a week in an 8-week period - the ‘relevant period’
• give you the correct notice
• give you proof of the adoption or surrogacy

There are special rules for some employee situations, eg if they leave, become sick or if they or their child dies.

Overseas adoptions

The conditions are the same, except the employee:

• must have ‘official notification’ (permission from a UK authority) that they can adopt from abroad
• must fill in the declaration on form SC6 if they’re adopting a child with their partner

Form SC6 confirms they’re not taking paternity leave or pay.

Employees in surrogacy arrangements

The child must be due on or after 5 April 2015 for the employee to be eligible for Statutory Adoption Pay and Leave.

The other conditions are the same except for Statutory Adoption Pay they must have worked for you continuously for at least 26 weeks by the 15th week before the week the baby is due.

If you ask, they must give you proof that they intend to become the baby’s legal parent.

Who can’t qualify

Employees won’t qualify for either adoption leave or pay if they:

• become a special guardian or kinship carer
• adopt a stepchild
• adopt a family member or stepchild
• adopt privately, eg without permission from a UK authority or adoption agency

Notice period

Statutory Adoption Leave

Within 7 days of being matched with a child, employees must tell you:

• how much leave they want
• their leave start date
• the ‘date of placement’ - the expected or actual date the child is placed with them

You have 28 days to write to them confirming their leave start and end date.

Employees in surrogacy arrangements

At least 15 weeks before the due date, employees must tell you when the baby is due and when they want to start their leave. You can ask for this in writing.

Changes to leave dates

Employees must tell you about changes to leave dates at least 28 days before their original start date or the new start date - whichever is earlier.

You must write to them if you have to amend their leave start and end dates.

Employees must give 8 weeks’ notice if they want to change the date they return to work.

Statutory Adoption Pay

Employees must usually give you 28 days’ notice before they want to be paid Statutory Adoption Pay, unless the time between the child being matched and placed is less than that.

Overseas adoptions - leave

The rules are different for leave if it’s an overseas adoption. Employees must tell you:

• the date of their ‘official notification’ and the expected date the child arrives in the UK - within 28 days of getting the notification
• the actual date the child arrives in the UK - within 28 days of this date
• how much leave they want and when they want it to start - giving you 28 days’ notice

You have 28 days to write to them confirming their leave start and end date.

Proof of adoption

Employees must give you proof of adoption to qualify for Statutory Adoption Pay. Proof isn’t needed for Statutory Adoption Leave unless you ask for it.

For adoption, the proof must show the:

• name and address of the agency and employee
• date the child was matched, eg the matching certificate
• the expected or actual date of placement, eg a letter from the agency
• the relevant UK authority’s ‘official notification’ confirming the parent is allowed to adopt (overseas adoptions only)
• the date the child arrived in the UK, eg plane ticket (overseas adoptions only)

You must keep records of the proof.

Surrogacy arrangements

Proof isn’t needed for leave or pay unless you ask for it.

If you ask, employees must give you a written statement (‘statutory declaration’) to confirm they intend to apply for a parental order in the 6 months after the baby’s birth.

Refusing pay or leave

Statutory Adoption Leave

You can’t refuse adoption leave or change the amount of leave employees want to take off.

For adoption, you can delay the start date if the employee doesn’t have a reasonable excuse for giving you the wrong amount of notice. To delay it, write to them within 28 days of their leave request.

Statutory Adoption Pay

You can refuse Statutory Adoption Pay if the employee doesn’t qualify.

To refuse it, give the employee form SAP1 within 7 days of your decision. They must get this form within 28 days of their request for Statutory Adoption Pay or the date they were matched with the child (whichever is earlier).

Record keeping

You must keep records for HM Revenue and Customs (HMRC), including:

• proof of adoption
• the date Statutory Adoption Pay started
• the payments of Statutory Adoption Pay you’ve made - including dates
• the payments you’ve reclaimed
• any weeks you didn’t pay and why

You must keep records for 3 years from the end of the tax year they relate to (eg by using form SAP2 or keeping your own records).

Help with statutory pay

For financial help with statutory pay, you can:

• reclaim payments (usually 92%)
• apply for an advance if you can’t afford payments