Providing adoption leave and pay 

On this page

• Ordinary Adoption Leave and Additional Adoption Leave
  
• Statutory Adoption Pay (SAP)
  
• Notice of leave and pay
  
• Documentary Evidence
  
• During Adoption Leave
  
• Contact During Adoption Leave
  
• Return to work
  
• Other Rights To Time Off
  
• Relevant Legislation
  
• How do I reclaim Statutory Adoption Pay (SAP) from HM Revenue and Customs?
  

Ordinary Adoption Leave and Additional Adoption Leave

Ordinary Adoption Leave and Additional Adoption Leave (together known as Statutory Adoption Leave) are available to some employees who adopt a child. Only one member of a couple is entitled to Statutory Adoption Leave. The other member of the couple may be entitled to Statutory Paternity Leave and Statutory Paternity Pay.  For more information on Statutory Paternity Leave and Statutory Paternity Pay refer to the Paternity Leave and Pay section of this toolkit. Where a child is adopted, see Adoption related paternity leave in our for advisers section.

To qualify for Statutory Adoption Leave, an employee must have worked continuously for their employer for at least 26 weeks prior to notification by the adoption agency that they have been newly matched with a child for adoption. An employee is taken to have been notified of having been matched with a child on the date on which they receive notification of the adoption agency’s decision.

An employee who is entitled to Ordinary Adoption Leave is entitled to Additional Adoption Leave so long as the child was placed with them for adoption, they took Ordinary Adoption Leave in respect of the child and their Ordinary Adoption Leave did not end prematurely either because they were dismissed or because the notified placement of the child did not in fact take place.

Ordinary Adoption Leave consists of 26 weeks’ leave. Additional Adoption Leave also consists of 26 weeks’ leave. Additional Adoption Leave follows on from Ordinary Adoption Leave, making a total of 52 weeks’ leave.

The employee can chose to start their leave on the date of the child’s placement or up to 14 days before the expected date of the placement. The employee can vary the start of leave provided he or she gives 28 days' notice.

Statutory Adoption Pay (SAP)

SAP is paid for 39 weeks It is paid by employers and reimbursed by HM Revenue and Customs. The earliest it can be paid is 14 days before the expected date of placement.

SAP is paid at a standard rate of £112.75 per week or 90% of average weekly earnings if that is less than £112.75. Tax and National Insurance contributions are deducted in the normal way.  Employees who have average weekly earnings of less than £87 are unlikely to qualify for SAP. Employers should refer to HM Revenue and Customs guidance [PDF] and contact the HM Revenue and Customs helpline (0845 7143 143) to see if their employee qualifies for SAP.   

Notice of leave and pay

An employee must give their employer notice of their intention to take adoption leave within seven days of receiving notification from the adoption agency that they have been matched with a child, or as soon thereafter as reasonably practicable. The employee must inform their employer (in writing if requested by the employer) of the date they would like to start their leave and when the child is expected to be placed with them.

Once the employer has been informed of these dates, the employer must write to the employee within 28 days stating the date on which they expect the employee to return to work.  The employer must assume that the employee will take his or her full leave entitlement.

If an employee is also claiming SAP, he or she should also notify his or her employer (in writing if so requested) of the date on which they expect payment to start and the expected date of placement. Employees should give their employers such notice at least 28 days before they want SAP to start, or as soon as reasonably practicable thereafter.

If the employee has chosen that their pay should begin on the date the child is placed for adoption with them, they must also inform their employer of the actual date of placement, as soon as reasonably practicable after it has happened.

Documentary Evidence

Employers can ask employees for certain documentary evidence issued by the employee’s adoption agency to determine if the employee is eligible for leave.  Employers must request this documentary evidence if the employee is claiming SAP. A matching certificate, issued by the adoption agency, can be used for this purpose. The employee must also give a declaration that he or she has chosen to receive SAP and not Statutory Paternity Pay.

During Adoption Leave

An employee continues to qualify for their statutory employment rights (such as the right to statutory redundancy pay) during adoption leave and the time spent on Ordinary Adoption Leave and Additional Adoption Leave counts towards qualifying service for such rights.

Employees are entitled to the benefit of their normal terms and conditions of employment during Ordinary Adoption Leave, as if they were still at work, except for terms relating remuneration.  Most adopters will be entitled to SAP during this period instead.  The period of Ordinary Adoption Leave also counts for assessing seniority, pension rights and other payments based on length of service (such as pay increments) under the contract of employment.

During Additional Adoption Leave, only certain contractual rights and obligations remain in force.  An employer does not have to count the period of Additional Adoption Leave when assessing contractual rights which are dependant on a period of continuous service, such as seniority, pension rights and other payments based on length of service under the contract of employment.

Contact During Adoption Leave

During the adoption leave period, an employer may make reasonable contact with an employee.  The frequency and nature of the contact will depend on a number of factors including the employee’s post, what has been agreed and what important information arises.  Employers must in any event keep employees informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was working.  What constitutes “reasonable” will depend on the circumstances and the employee.

“Keeping In Touch” Days

Employees may, by agreement with their employer, undertake up to 10 days’ work under their contract of employment during adoption leave.  “Keeping in touch” days may be worked at any time during adoption leave.  Any work done on any day during the adoption leave period will count as a whole day towards the 10-day limit.  The type of work that the employee undertakes is a matter for agreement between employer and employee.  They may be used for any activity which would ordinarily be classed as work under the employee’s contract of employment.

An employee is entitled to be paid for “keeping in touch” days.  The rate of pay is a matter for agreement with the employer, and may be set out in the employment contract or agreed on a case-by-case basis.  If the employee is receiving SAP, she should continue to receive SAP and the employer may count the amount of SAP paid towards the contractual pay agreed by the two parties.  The employer will be able to recover SAP in the normal way.

Return to work

An employee does not need to give notice of their return to work if they return on the expected date of return.  This is the date confirmed in writing by the employer.  If an employee wishes to return to work earlier, they must give their employer at least 8 weeks notice of their new return date.

At the end of Ordinary Adoption Leave an employee is entitled to return to the same job, on the same terms and conditions of employment, as if they had not been absent.  An employee is also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they were away.

At the end of Additional Adoption Leave an employee is entitled to return to the same job, on the same terms and conditions of employment, as if they had not been absent.  An employee is also entitled to benefit from any general improvements to the rate of pay or other terms and conditions introduced while they were away.  If there is some reason why it is not reasonably practicable for the employee to return to the same job, they should be offered a suitable alternative job, on terms and conditions which are no less favourable than their original job, and their seniority and other similar rights must be preserved.

If an employee’s position is to be made redundant during Ordinary Adoption Leave or Additional Adoption Leave, the employee is entitled to be offered a suitable alternative vacancy on terms and conditions which are not substantially less favourable than their original job.

An employer should consult with an employee in relation to any proposed redundancy, notwithstanding the employee’s absence on adoption leave.

Adoption leave can come to an end early if the adoption leave is disrupted by the notified placement not actually taking place, the child dies or the child is returned to the adoption agency. In these circumstances, the adoption leave will end within eight weeks of the notification, death or return of the child to the adoption agency. There are slightly different rules if the employee's 26 weeks of Ordinary Adoption Leave would end within that 8 week period.

Under no circumstances is an employee who is entitled to adoption pay required to repay SAP if s/he does not return to work after adoption leave.

Other Rights To Time Off

Eligible employees are also entitled to Parental Leave, Time Off For Dependants and they have the right to request flexible working. More information on these rights can be found in the relevant sections of this toolkit.

Protection for Employees

An employee must not suffer a detriment or be dismissed for a reason connected to adoption leave.

Relevant Legislation

• Employment Rights Act 1996
• Employment Act 2002
• Work and Families Act 2006
• Paternity and Adoption Leave Regulations 2002
• Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006
• Social Security Contributions and Benefits Act 1992
• Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002
• Statutory Maternity Pay, Social Security (Maternity Allowance) and Social Security (Overlapping Benefits)  (Amendment) Regulations 2006

Please note that some of the legislation listed above has been amended since it originally came into force. You must ensure, therefore, that you refer to the most recent version.

How do I reclaim Statutory Adoption Pay (SAP) from HM Revenue and Customs?

The amount which employers pay by way of SAP can be deducted from any PAYE tax, student loans, National Insurance contributions and Construction Industry Scheme deductions which it pays to HM Revenue and Customs.

Small Employers’ Relief

The amount and employer can deduct depends on whether it is entitled to Small Employers’ Relief.  If an employer is entitled to Small Employers’ Relief, it can deduct 104.5% of the SAP it has paid to employees.  If it is not entitled to such relief, it can deduct 92% of the SAP it pays.

Advance Payment

Employers may also apply to HM Revenue and Customs for an advance payment in respect of SAP.

For more detailed information on how to claim back SAP, click here [PDF].

It is obligatory for employers to keep certain records for three years after the end of the tax year in which SAP was paid and certain documents and records must be available to HM Revenue and Customs for inspection.  For more information, click here [PDF].

Employers can call the Employers’ Helpline operated by HM Revenue and Customs with any questions regarding SAP on 0845 7143 143.