People who adopt a child have similar family leave rights to those who have a child via pregnancy. It’s important for employers to understand how these rights affect the workplace.
In the UK, people who are 21 years old or over can adopt a child regardless of their marital status. People can adopt a child:
by working with an adoption agency to adopt in the UK (also known as a ‘standard adoption’) or from overseas
via surrogacy
by fostering to adopt
For more information, read Adoption.
Adoption leave and pay entitlements are the same regardless of which of these adoption processes is used.
Adoption leave is the time that employees are allowed off work if they adopt a child. It is essentially equivalent to maternity leave.
Employees are entitled to Statutory Adoption Leave (SAL) of at least 52 weeks off work. SAL is divided into 26 weeks of ‘ordinary adoption leave’ and 26 weeks of ‘additional adoption leave’. Some employers will make more generous leave allowances. Employees may also choose to add any holiday entitlement onto their adoption leave to make it longer, if their employer permits.
Employees can start adoption leave either:
when the adoption agency has matched them with a child
up to 14 days before the child starts living with them (for UK adoptions)
when the child first arrives in the UK or within 28 days of this date (for adoptions from abroad), or
the day the child is born or the following day (for adoptions via surrogacy)
Eligible employees are entitled to Statutory Adoption Pay (SAP). SAP is paid for 39 weeks starting on the first day of adoption leave. As of 6 April 2022, the SAP rates are:
during the first 6 weeks of leave – 90% of an employee’s normal pay
during the remaining 33 weeks – the lower of £156.66 per week or 90% of the employee’s average weekly pay
Employers can pay employees more than the SAP minimum, at whatever rate and for however long they see fit. This is sometimes called ‘enhanced’ or ‘contractual’ adoption pay.
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.
To get SAL, an employee must:
give their employer the correct notice of their upcoming adoption (notice periods vary depending on which adoption process is used)
provide proof of the adoption or surrogacy, if requested by the employer
sign Form SC6 confirming that paternity leave or pay will not be taken (if adopting from abroad only)
not adopt through a private adoption (ie they must match with a child through an adoption agency or have arranged a surrogacy)
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.
To receive SAP, employees must:
have at least 26 weeks of continuous service with their employer before:
being matched with a child (for adoptions via an adoption agency)
taking adoption pay (for adoptions from overseas)
the ‘qualifying week’, ie 15 weeks before the baby is due (for adoptions via surrogacy)
earn at least £123 a week (before tax)
provide the correct notice (notice periods vary depending on which adoption process is used)
provide proof of the adoption or surrogacy showing the:
name and address of the people adopting and the adoption agency
adoption match date and the adoption placement date
official notification from the relevant UK authority confirming the adoption can go ahead (for adoption from abroad only)
date the child arrived in the UK (adoption from abroad only)
not adopt through a private adoption (ie they must match with a child through an adoption agency or have arranged a surrogacy)
not adopt a stepchild or family member, or become a special guardian or kinship carer
sign Form SC6 confirming that paternity leave or pay will not be taken (for adoption from abroad only)
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.
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:
they signed a statement before their adoption leave in which they agreed to this repayment provision, or
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.
Employees are also entitled to time off work to attend adoption appointments, including:
appointments arranged by the adoption agency for the intended parents to meet and spend time with the child
pregnancy-related appointments during the surrogacy process
The primary adopter must be allowed to attend up to 5 appointments, and the secondary adopter up to 2. Enhanced allowances can be made for either. Both the primary and secondary adopters must be given at least 6.5 hours to attend each appointment.
Employment rights are protected while employees are on SAL. This means that their Employment contract continues but with altered pay provisions, and all benefits must continue as normal.
Employees must not be dismissed or subjected to any detriment for taking or requesting adoption leave. Employers should consider introducing an Adoption leave policy that will help managers and staff understand adoption leave rights and obligations. They should also take care to comply with data protection requirements. For more information, read Data protection and employees.
Annual leave entitlement continues to accrue as usual while employees are on SAL. Employees can also carry over up to 4 weeks (or more, if allowed by the employer) of any unused holiday entitlement, if being on adoption leave made using it within an annual leave year impractical. This means that employees can take their remaining holiday days during the next annual leave year in addition to their usual entitlement for that year. Employers may set a timeframe (eg 6 months) within which any carried over entitlement needs to be used, to prevent employee holidays piling up at the end of the year.
Employees may agree with their employers to have up to 10 KIT days during their adoption leave, during which they work or attend training to keep up with what is happening in the workplace. Employees must be paid their normal pay (ie what they are paid when they are working) during any KIT days.
For more information, see the Government’s guidance.
If employees wish to end their adoption leave on a different date than initially agreed (eg early), they must provide at least 8 weeks’ notice of their new return date, unless their employer agrees to less notice.
Employees are generally entitled to return to the same role that they held before taking SAL. However, if more than 26 weeks of adoption leave is taken, employers may in some circumstances offer a suitable alternative role instead. For more information, read the Government’s guidance.
Employees may wish to alter their working arrangements when returning to work (eg to facilitate childcare arrangements). Any changes to working hours or other working conditions should be discussed with employers or made using a Flexible working request. Employers can set out rules for flexible working in a Flexible working policy.
Employers offering employees enhanced maternity and/or paternity leave and pay should consider offering equivalent provisions to employees taking adoption leave. Employees who take adoption leave are more likely to identify as LGBTQ+ or to have health conditions which prevent them from giving birth to children. Making equal provisions for parents however they choose to start a family can show that an employer values all employees equally.