Adoption Leave and Surrogacy
Adopting a child is a positive and exciting time. It is also a time when information and support is needed and questions may arise.
The NASUWT is committed to ensuring that you receive the support and advice you need about your rights at work while you are adopting.
You and your partner have to decide which of you is to going to be the ‘adopter’ for the purposes of accessing rights and entitlements.
In this guidance, reference to ‘you’ is to the adopter.
To qualify for adoption leave, you must:
- have a contract of employment;
- notify your employer within 7 days of being matched with a child, confirming the ‘date of placement’, the length of adoption leave you want to take and when this will start;
- or provide proof of the adoption or surrogacy
For surrogacy there is a ‘statutory declaration’ which your employer may request confirming your application for a parental order. If this is requested it must be signed in the presence of a legal professional.
If you are ‘fostering to adopt’, you are also eligible for ordinary adoption leave and pay from when the child comes to live with you. In these circumstances, you will not be entitled to adoption leave when you are matched for adoption with that same child.
Once you have notified your employer of your intention to adopt, your employer must then write to you within 28 days, confirming the start and end dates for your adoption leave.
You are entitled to paid time off work to attend 5 adoption appointments once you have been matched with a child.
You should retain any records of adoption appointments in case your employer asks to see them.
Your spouse or partner is entitled to unpaid time off work to attend two adoption appointments.
Your employer may have an Adoption Leave policy which is better than the statutory entitlements.
Request a copy of the Adoption Leave policy from your employer.
If your employer has an Adoption Leave policy, you are entitled to be given a copy.
Adoption leave UK
You are entitled to 52 weeks’ Adoption Leave, made up of 26 weeks’ Ordinary Adoption Leave and 26 weeks’ Additional Adoption Leave.
Your partner may also be eligible to take paternity leave.
Your adoption leave may commence up to 14 days before the date the child starts living with you if it is a UK adoption.
Adoption leave - overseas
If you are adopting from overseas, adoption leave can begin when the child arrives in the UK or within 28 days of this date.
If you are adopting through a surrogate, your leave can start on the day the child is born or the day after. If you are genetically related to the child (i.e. the egg or sperm donor), you can choose to get paternity leave and pay instead, but you cannot get both.
If these dates change, you must inform your employer within 28 days.
If you change your mind about your return to work date, you will need to give your employer at least 8 weeks’ notice.
Adoption leave and pay can be shared with your partner if you choose to end your adoption leave and give notice to your employer that you intend to do so.
During your adoption leave, your terms and conditions of employment are protected.
Your employer cannot change your terms and conditions of employment whilst you are on adoption leave without your agreement.
You cannot be dismissed from employment or be subject to unfair treatment because you have taken adoption leave.
If your employer proposes to make changes that could affect your employment, contact the NASUWT immediately.
You are entitled to receive up to 39 weeks’ Statutory Adoption Pay during your adoption leave followed immediately by up to 13 weeks’ unpaid adoption leave if you:
- have worked for your employer continuously for at least 26 weeks by the week you were matched with a child;
- earn at least the Lower Earning Limit for National Insurance purposes, which is £120 a week (gross as at April 2020);
- have given your employer proof of the adoption or surrogacy. This must include your name and address and that of the agency, the ‘matching certificate’, and the letter from the agency stating the date of the placement;
- have ceased work (i.e. commenced adoption leave).
You must give your employer at least 28 days’ notice of when you want Statutory Adoption Pay to begin. Your employer must confirm within 28 days how much Statutory Adoption Pay you will receive and when this will begin and end. If the child is adopted from overseas, then you must also provide within 28 days the following to your employer:
- the ‘official notification’ that you are allowed to adopt as well as the estimated date when the child arrives in the UK;
- the actual date the child arrives in the UK;
- how much leave you want and you start date
Your employer must inform you within 7 days if they believe you are not eligible, using form SAP1. There may be assistance available through your local council instead.
Keeping in touch
During your adoption leave, you can have the option to work up to ten ‘Keeping in Touch’ days.
These are optional and need to be agreed by you and by your employer.
Many teachers benefit from these days by attending briefings, curriculum development meetings and in-service training.
Before coming into work on a Keeping in Touch day, you should agree with your employer the type of work you will be undertaking and how much you will be paid. Normally, you should expect to be paid a day’s salary.
Your rights to adoption leave and adoption pay are not affected by Keeping in Touch days.
During your adoption leave, your employer has the right to make reasonable contact with you, but this should not be excessive or intrusive.
Returning to work
If you wish to return to work on the agreed date, no notice is required.
If you wish to return to work earlier than your agreed date, or if you wish to extend the period of your adoption leave, you will need to give your employer at least eight weeks’ notice in writing of the new date of return.
You should return to the same job if you took Ordinary Adoption Leave.
If you have taken Additional Adoption Leave, you have the right to return to a job that is not significantly different, but it may not be the same.
Further advice and guidance
For further advice and guidance, contact the NASUWT.