When a couple adopts, only one person can take statutory adoption leave. This person is known as the ‘primary adopter’. It is for the couple to decide who the primary adopter will be. The other member of the couple (known as the ‘secondary adopter’) may be eligible for paternity leave and pay, or both may be able to take shared parental leave. To receive statutory adoption leave and/or pay, employees must meet the eligibility criteria below.
Adoption leave eligibility
To get SAL, an employee must:
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be classed as an employee
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give their employer the correct notice of their upcoming adoption (notice periods vary depending on which adoption process is used)
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provide proof of the adoption or surrogacy, if requested by the employer
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sign Form SC6 confirming that paternity leave or pay will not be taken (if adopting from abroad only)
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not adopt through a private adoption (ie they must match with a child through an adoption agency or have arranged a surrogacy)
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not adopt a stepchild or family member, or become a special guardian or kinship carer
Employers who offer enhanced adoption leave may impose additional eligibility requirements for any leave in excess of SAL.
For more information, see the Government’s guidance.
Adoption pay eligibility
To receive SAP, employees must:
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have at least 26 weeks of continuous service with their employer before:
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being matched with a child (for adoptions via an adoption agency)
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taking adoption pay (for adoptions from overseas)
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the ‘qualifying week’, ie 15 weeks before the baby is due (for adoptions via surrogacy)
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earn at least £123 a week (before tax)
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provide the correct notice (notice periods vary depending on which adoption process is used)
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provide proof of the adoption or surrogacy showing the:
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name and address of the people adopting and the adoption agency
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adoption match date and the adoption placement date
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official notification from the relevant UK authority confirming the adoption can go ahead (for adoption from abroad only)
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date the child arrived in the UK (adoption from abroad only)
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not adopt through a private adoption (ie they must match with a child through an adoption agency or have arranged a surrogacy)
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not adopt a stepchild or family member, or become a special guardian or kinship carer
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sign Form SC6 confirming that paternity leave or pay will not be taken (for adoption from abroad only)
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intend to apply for a parental order or an adoption order and expect the order to be granted (for adoptions via surrogacy only)
As for adoption leave, employers who offer enhanced adoption pay may impose additional eligibility requirements for any adoption pay above the SAP minimum. For example, enhanced pay may only be available for employees who have worked for the business for a certain period of time before their adoption leave. Employers cannot make SAP subject to additional eligibility requirements. For more information, read the Government’s guidance.
Repaying enhanced adoption pay
Employers can require employees to repay some or all of their enhanced adoption pay if they agree to work for the business for a certain period of time after their adoption leave, but do not do so. Employees are only obliged to repay adoption pay if either:
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they signed a statement before their adoption leave in which they agreed to this repayment provision, or
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there is a clause in their employment contract setting out this repayment provision (sometimes called a ‘clawback clause’)
Employees will never have to repay the amount of adoption pay that they are entitled to under SAP rules.
Employers should ensure that employees are aware of any repayment requirements before their adoption leave. You can Ask a lawyer for help creating an employment contract which includes a repayment provision.