Adoption rights; what employers need to know
26th October 2022 by Alana Penkethman
According to the charity Adoption UK, there are nearly 3,000 children in care waiting to be adopted. National Adoption Week took place this month, and as many Charities will be seeking to raise awareness, employers may get questions about employment rights related to adoption.
Alana Penkethman, employment expert at Laceys Solicitors, Bournemouth, explains that ‘Employees now have a number of family-friendly employment rights available to support them when adopting children. These rights provide broadly the same entitlement to leave, pay, and legal protection as those of biological parents.’
Who is entitled to adoption employment rights?
An employee may be adopting on their own, or with a partner of either the same or different sex. Adoption employment rights apply to:
- parents who are adopting through a surrogacy arrangement; and
- parents who are adopting through the ‘fostering for adoption’ scheme.
A slightly different framework applies to parents adopting from overseas.
Stepparents adopting a stepchild, and employees who adopt through private arrangements (rather than through an agency), are not entitled to the same adoption employment rights, although they may be entitled to ordinary parental leave and time off for a dependant.
Adoption appointments
Adoption involves numerous appointments, and employees and agency workers are allowed time off work to attend adoption appointments arranged by an adoption agency (including a local authority).
The adopter may take paid time off to attend five appointments, up to 6.5 hours off each time. Joint adopters can choose for one individual to take paid time off for five appointments and the other adopter to take unpaid time off for two appointments.
Adoption leave
The adopter is entitled to 52 weeks’ adoption leave. The leave can start up to 14 days before the child is expected to be placed with the employee.
The rules set out how to determine if an employee has enough service to qualify for paid leave.
Keeping-in-touch days
During adoption or shared parental leave, employees can attend up to 10 paid keeping-in-touch days with the employer, but there is no obligation to do so.
Statutory adoption pay
To be entitled to 39 weeks’ statutory adoption pay, the employee’s weekly pay must be above a minimum threshold (currently £123) and they must have worked for their employer for 26 weeks.
The first six weeks are paid at 90% of average pay and at the statutory rate for the remaining 33 weeks (currently £156.66) if this is higher than 90% of average pay. There are specific rules for calculating average pay.
Rights for adopting couples
If adopting in a couple, one parent must be the primary adopter for purposes of adoption leave and pay. The other adopter may take two weeks’ statutory paternity leave provided that they have worked for their employer for 26 weeks. The partner would give up the right to paternity leave if they took paid time off work to attend adoption appointments.
After the first two weeks of adoption leave, an eligible partner of an adopting parent can share the parental leave. The eligibility and notice rules are complicated. Please get in touch if you receive a request to share parental leave.
Rights during and at the end of leave
Employees on adoption or shared parental leave are entitled to the same benefits under their contract of employment, other than their contractual pay. Holiday pay continues to accrue.
Employees have the right to return to the same job after taking adoption or shared parental leave. In some circumstances, you do not have to hold their job open for them, but you must ensure that they return to a suitable job on no less favourable terms. Please get in touch if keeping the employee’s job open is looking difficult.
Protection from detriment and dismissal
Pregnant women and women who have just given birth are protected from discrimination, but there is no equivalent protection for adopters. Otherwise, adopters have similar protection. Employees are protected from being subjected to a detriment because of taking adoption leave or attending an adoption appointment.
Employees are protected from being selected for redundancy because they take adoption or shared parental leave. If you are looking at redundancies, be aware that employees who are out of the workplace on adoption or shared parental leave have special protection. These employees should be prioritised for any suitable, alternative vacancies if they are at risk of being made redundant. If this is missed, the redundancy dismissal could be automatically unfair.
Other family-friendly rights
Adopting parents also have the right to parental leave and for time off for dependants. Both types of leave are unpaid. Parental leave allows an employee with one year’s service to take up to 18 weeks’ off to care for a child under the age of 18. Employees may also take reasonable time off to make alternative arrangements if childcare is unexpectedly disrupted or to deal with an emergency relating to a dependant, including an adopted child.
How we can help
We can help you avoid employment tribunal claims and ensure that your employees feel supported in balancing their work and family commitments. For further information, please contact Alana on 01202 377 872 or email a.penkethman@laceyssolicitors.co.uk.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Alana Penkethman
Associate — Corporate and Commercial
Direct dial: 01202 377872
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Alana is an Associate in our Corporate and Commercial team and is an expert employment lawyer. She advises businesses and individuals on matters arising from recruitment to termination.
Alana provides pragmatic advice, ensuring problems are resolved as quickly as possible, and in turn minimising disruption and stress to both parties. When litigation is unavoidable, Alana excels in negotiations and will deliver robust representation.
Since qualification in 2011, Alana has developed a specialism in discrimination matters, and is passionate about equality in the workplace.
When Alana is not working, she enjoys flying with a hot air balloon team and is a keen cyclist. She also enjoys live music and plays the saxophone.
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