This week is National Adoption Week 2021, run by Adoption UK, which aims to promote the joys and challenges of adoption and help people better understand how the adoption process works.
As an employer it’s important to understand the laws around adoption leave, and have clear policies and procedures in place to ensure you provide staff with the necessary support during an adoption or surrogacy process.
This blog highlights some key aspects of adoption leave and sets out how our Adoption and Surrogacy Toolkit and Staff handbook and policies can assist as a valuable part of your HR documentation.
Adoption leave: the basics
What is adoption leave?
Adoption leave is a period of up to 52 weeks’ leave from work, available to certain members of staff who have adopted a child or had a child through a surrogacy arrangement. Their employment contract terms still apply during their period of adoption leave (except changes to their remuneration) and they are entitled to return to work after their adoption leave ends.
Are all staff eligible for adoption leave?
No, eligibility depends on the type of staff member.
Employees
All employees are eligible for adoption leave if they are adopting a child through an adoption agency, are formally adopting a child from overseas, or are the intended parent of a child under a surrogacy arrangement and satisfy certain conditions. However, not all employees will qualify for statutory adoption pay.
When applying for adoption leave and/or statutory adoption pay, employees need to meet certain criteria, give a certain amount of notice, and provide you with specific information. For further guidance on these criteria, see our Q&A on Adoption leave and pay.
Agency workers
Agency workers may be eligible to take adoption leave if they are employed by an agency, but these workers are the responsibility of their agency. If you have an agency worker who wants to take adoption leave, discuss the arrangements with their agency.
Casual workers
Casual workers are not automatically entitled to adoption leave, but if you have agreed in their contract that they may take adoption leave they may be entitled to receive statutory adoption pay. This will depend on whether they meet the relevant statutory criteria.
Freelancers
Freelancers are not entitled to adoption leave or statutory adoption pay.
Can both partners in a couple get adoption leave and pay?
No; where a couple adopts a child together or has a child through surrogacy, only one of them will be entitled to adoption benefits. The other partner may be entitled to paternity benefits; see Paternity leave and pay for further information about this.
Alternatively, both partners could share time off to care for the child by taking shared parental leave; see Shared parental leave and pay for further information about this.
Creating an adoption policy
Do I need an adoption policy for staff?
It’s best practice to have an adoption policy in place, to ensure your staff members are clear about their rights and obligations. Your policy should include staff members’ rights to time off work for pre-adoption appointments and paid adoption leave, as well as their rights upon returning to work.
Bear in mind that you must provide all employees and casual workers with details about any paid leave they are entitled to, on or before their first day of work. It’s recommended that you include a reference to paid leave policies in their employment contracts, but include the policy details in a separate document to avoid the risk of turning non-contractual benefits into contractual ones. See Employment contracts for further guidance about this requirement.
How can I create an adoption policy?
For a template adoption policy that you can customise for your business, see Staff handbook and policies. You can choose to generate the policy either on its own or as part of a full staff handbook.
Key steps for adoption leave: Using the Adoption and Surrogacy Toolkit
Our Adoption and Surrogacy Toolkit covers the following steps in the adoption leave process, along with providing 14 document templates to assist you.
1. Antenatal and pre-adoption appointments
Certain staff are entitled to time off to attend pre-adoption appointments or antenatal appointments with their surrogate.
In our Adoption and Surrogacy Toolkit you will find guidance on:
- who is entitled to time off for antenatal and pre-adoption appointments;
- in what circumstances leave should be paid or unpaid; and
- how much leave is permitted.
It also includes template declaration forms for your employee to declare they are eligible for time off to attend the appointments.
2. Arranging adoption leave
Your staff member is responsible for giving you notice of their intention to take adoption leave and confirming the relevant details. Our Adoption and Surrogacy Toolkit includes:
- guidance on timeframes within which your staff member must notify you and when leave will begin;
- template notices including statutory declarations which you will use to reclaim statutory adoption pay; and
- documentation to set the staff member’s starting leave dates and other arrangements.
3. Adoption pay
If you don’t have an enhanced adoption pay policy, your employee will get statutory adoption pay for 39 weeks. Our toolkit provides further guidance on what adoption pay should be and the relevant forms you need.
4. Keeping In Touch days
You can arrange up to 10 Keeping in Touch (KIT) days with your employee if you both wish to do so, where the employee comes into the office and/or does some work for you. You can use the template letter in our toolkit to arrange these KIT days.
5. Returning to work after adoption leave
Your staff can use the letters in our toolkit to notify you of their return to work, and you can use the template letters to respond.
You should ensure the employee will be returning to the same job they had before, on the same terms and conditions. You can offer them an alternative role only if they took more than 26 weeks of leave and it’s not possible for them to return to their original role. Any alternative role you offer must be suitable; broadly, it should be at a similar level of seniority, involve similar hours and involve work that they are trained/qualified to do.
For further guidance on all aspects of adoption leave, see our Q&A on Staff who adopt or have a child via surrogacy.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.