Adoption leave pay and arrangements

1. Introduction

The information in this guide applies to all employees, both teaching and non-teaching who:

are employed under Local Government Services Green Book Conditions of Service
are employed within a Dorset LA school and are covered by the STPCD and Burgundy Book
are employed by an Academy that follows nationally agreed conditions of service for either/both teaching or non-teaching staff.

There is an entitlement to only one period of adoption leave regardless of the number of children being placed. A child is up to 18 years of age.

If you have a partner and are adopting as a couple, whether your partner is the same sex or opposite sex, you must decide which one of you will take adoption leave. If your partner is taking adoption leave then you may be entitled to maternity support leave and pay.

If you are entitled to adoption leave, you may also have the option of converting some of your adoption leave and statutory adoption pay into shared parental leave and shared parental pay. You may wish to do this if you want to share some of the first year's leave and statutory pay with your partner or you could use it to take leave on a more flexible basis.

If you are becoming a special guardian or kinship carer, adopting a stepchild or having a child through a private adoption agreement, you won't normally be able to get statutory adoption leave or pay. You may be entitled to statutory adoption leave and pay if you are one of the intended parents in a surrogacy (Parental Order Parents) or foster to adopt arrangement (dual approved prospective adopters) where you are not genetically related to the child (i.e. the egg or sperm donor).

2. Making Arrangements: What you need to do

It is your responsibility to inform your Headteacher of the dates that you want to take adoption leave. This section explains when and how you need to provide this information

2.1. Adoption notification requirements

There are different notification requirements depending on whether you are adopting in the UK or from overseas and if you are one of the intended parents in a surrogacy arrangement where you are eligible for and intend to apply for a Parental Order (or where you have already obtained such an order) making you the legal parents of the child that you are having with the help of a surrogate mother.

UK adoptions

If you are adopting a child within the UK then within 7 days of being matched* with a child you should inform your Headteacher of:

when you are planning to start your leave and when you plan to return AND
the date that the child will be placed with you (to the best of your knowledge)

*In the case of dual approved prospective adoptions, 'matched with a child' means that you have been notified by the Local Authority that a child will be placed with you in accordance of section 22C of the Children Act 1989, i.e. when the child will join the family, initially for fostering.

You should also provide a copy of the matching certificate

Overseas adoptions

If you are adopting a child from overseas then you should inform your Headteacher of:

the date of your 'official' notification
the date the child is expected to enter the UK (within 28 days of getting the notification).

Official notification is permission from a UK authority for an adoption from abroad. This is provided by or on behalf of the relevant British authority (i.e. the authority that it is prepared to issue a certificate to the relevant overseas authority in connection with the adoption - or has already done so).

You will also need to:

give 28 days' notice of when you are planning to start your leave when you'll return (if you know) AND
within 28 days of the child entering the UK, provide evidence of the date that the child arrived in the UK

Surrogacy and parental order parents

If you are having a child through surrogacy and intend to apply for (or have already obtained) a Parental Order making you the legal parents of the child, then before the end of the 15^th week before the expected week of birth, you must inform your Headteacher of:

The baby's due date
The date on which the leave and/or pay will begin
The length of leave that you wish to take
The child's actual date of birth once the child has been born

Where requested you must also supply a statutory declaration confirming that you intend to apply for a Parental Order (with the other intended parent) under section 54 of the Human Fertilisation and Embryology Act 2008 within the prescribed time limit (6 months from birth) and expect that order to be made.

2.2. Notification of changes

If the date of placement (or UK arrival date for overseas adoptions) changes, where possible, you should give your Headteacher at least 28 days' notice to change the start date of your adoption leave.

You can change your mind about the date you want to return to work following your adoption leave. You should give your Headteacher at least 8 weeks' notice before your intended new return to work date

You should notify your Headteacher to confirm the date when the child is placed with you/born.

3. Adoption leave

3.1. Eligibility

Adoption leave is available to employees who are adopting a child under 18 years of age and who:

will be the child's adopter and primary carer
have notified the adoption agency that you agree that the child should be placed with you and the date of placement

You are also entitled to adoption leave if you are the intended parent in a surrogacy or 'foster to adopt' arrangement.

If you have been approved to become an adoptive parent by a UK local authority and are newly matched with a child who is the legal responsibility of the local authority, you are entitled to adoption leave - including in circumstances where the child is a family member, for example your nephew.

However, if the child is already known to you and is not newly matched to you for adoption, (for example you are a step-family adopter, the existing foster carer or you are arranging the private adoption of a close relative), you are not entitled to adoption leave.

You will not be eligible for adoption leave if you become a special guardian or kinship carer, or you have a child with the help of a surrogate mother and you are not eligible for a Parental Order.

You are entitled to 26 weeks ordinary adoption leave followed by 26 weeks additional adoption leave, a total of 52 weeks regardless of the number of hours you work per week. You do not have to take the full 52 weeks however all the leave you take must be in one continuous period. Adoption leave can commence either on (but not after) the date the child is placed with you or another pre-determined date, no more than 2 weeks before the date the child is expected to be placed with you. Leave can start on any day of the week. In the case of foster to adopt arrangements, this can be from 2 weeks before the child is placed with you in accordance with section 22C of the Children Act 1989.

Both adoption leave and pay will cease at the end of the week in which either:

the child reaches 18
the adopter dies
the adopter is given a custodial sentence.

3.2. Disrupted adoption leave

If you have commenced adoption leave and then you are notified that the child will not be placed, or after the child is placed, the child dies or is returned to the adoption agency, you will not be entitled to the full adoption period. In these circumstances adoption leave will end 8 weeks after the end of the week in which the disruption occurred.

4 Contact during adoption leave

4.1. Keeping in touch (KIT) days

You can do up to 10 days work during your adoption leave, without bringing the leave to an end. These are called keeping in touch (KIT) days. Your adoption leave period will not be extended by KIT days.

Schools cannot insist that these days are worked and they are not under any obligation to offer you such work, they must be mutually agreed. Work may include training or any activity undertaken for the purposes of keeping in touch with the workplace, such as attending conferences, appraisals or team meetings.

Any work you do as a KIT day, even as little as half an hour for example, will be counted as a whole day for the purposes of subtracting that KIT day from your KIT days allowance.

Payment can be made subject to agreement with your Headteacher for such work. You will be paid at your contractual rate for any hours worked under the KIT days scheme and these hours only. Childcare costs arising from KIT days will not be paid by the school. Any statutory adoption pay (SAP) payments made during this period will be offset against any pay due.

Schools need to ensure that you are kept informed of vacancies, any significant workplace developments and training opportunities whilst you are on maternity leave. You school may also make reasonable contact with you to discuss issues of return to work. This type of contact isn't considered work and as such will not form part of the ten KIT days.

If you work more than 10 KIT days then your adoption pay will automatically cease.

5. Adoption pay

Your adoption pay starts when your adoption leave starts. Adoption pay is payable for the first 39 weeks of adoption leave. The remaining 13 weeks is unpaid. Proof of adoption must be provided to qualify for statutory adoption pay. This proof must show:

Your name and address
The name and address of the adoption agency
The date on which you were informed that they child would be placed for adoption/fostering under section 22C of the Children Act 1989 with you
The date that the child will be placed with you (this could be a letter from the adoption/foster agency)

You must also provide a declaration that you have elected to receive statutory adoption pay and not maternity/adoption support (paternity) pay.

Academies/MAT's will have the option to decide whether they wish Occupational Adoption Pay to mirror maternity provisions or not. If they decide NOT to pay OAP then we would advise that they consult with their employees and the trade unions.

5.1. Occupational Adoption Pay (OAP)

Where OAP WILL be paid School to insert the following:

Occupational Adoption Pay (OAP) is provided by the School as a benefit to its employees.

Where School will mirror both teaching and support staff maternity policies then the following will apply: There are different schemes available for teaching and support staff. Further guidance on eligibility for either scheme can be found at Appendix A (teachers) or Appendix B (support staff). Under the terms of both schemes however, if you are eligible to receive OAP and you choose to receive the half pay element, you will be required to return to work for at least 3 months following adoption leave, regardless of whether you return on a full or part time basis.

If the School will mirror Green Book maternity provisions for both support staff AND teachers then the following will apply: The scheme is the same for both teaching and support staff and further guidance on the eligibility for OAP can be found at Appendix A. Under the terms of the scheme however, if you are eligible to receive OAP and you choose to receive the half pay element, you will be required to return to work for at least 3 months following adoption leave, regardless of whether you return on a full or part time basis.

In both cases the following statement will apply: If you do not return to work after your adoption leave and you have been in receipt of OAP then you will normally be required to pay your half pay back.

OR

Where School will NOT be paying OAP insert the following:

The School does not provide Occupational Adoption Pay (OAP) as a benefit to its employees. Statutory Adoption Pay is available to those who meet the eligibility criteria.

5.2. Statutory Adoption Pay (SAP)

You are entitled to 39 weeks SAP if you:

have at least 26 weeks continuous service with your current employer by the matching week AND
your average earnings are at least as much as the lower earnings limit for National Insurance (NI) contributions at the end of your qualifying week.

The 39 weeks SAP is:

90% of your average weekly earnings* (before statutory deductions) for the first 6 weeks
Lower rate SAP** or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks
The remainder of your leave will be unpaid.

*Your average weekly earnings is the average of payments made over the eight weeks prior to the end of the qualifying week.

**Lower rate SAP is an amount set by the government and is reviewed every April. To find out what the current rate is, visit the HMRC or.gov.uk website.

5.3. Entitlement to SAP if you leave employment

If you are employed on the matching week and you are made redundant or you leave your job voluntarily for a reason not connected with the adoption or your fixed term contract comes to an end before or during your period of adoption leave, you will continue to be eligible for SAP. Add the following if school will be providing OAP - OAP is payable up to the date of leaving employment/end of the fixed term contract.

If you leave your job voluntarily before the matching week, you will not be eligible for SAP.

If you are taken into legal custody during your adoption pay period, you will no longer be entitled to any adoption pay.

If you are on a fixed term contract which is due to end after the start of the matching week and you remain employed during the matching week, you will still be entitled to receive SAP. Consequently you must notify your employer of your intention to take adoption leave.

6. Further guidance

6.1. Adoption appointments

All employees who are proposing to adopt have a right to time off during their working hours to attend adoption appointments. The reason for the appointment must be so that the adopter can have contact with the child or children, or for other related purposes. Your Headteacher may wish to see evidence of your appointments and that it has been arranged by or at the request of the adoption agency and you should aim to provide as much notice as possible.

Employees adopting on their own are entitled to paid time off for no more than 5 appointments. This also applies where the employee is the main adopter of a joint adoption (whichever of them has elected to take adoption leave in respect of the child). The other joint adopter is limited to 2 unpaid appointments. Each appointment is limited to a period of 6.5 hours and you can only take time off for an appointment before a child has been placed with you. If more than one child is being adopted at the same time, the number of appointments and amount of time off will remain the same.

If you use the right to take time off to attend an adoption appointment, you will no longer have a right to take paternity leave for that child.

6.2. Antenatal appointments

If you are the intended parents in a surrogacy arrangement where you are eligible for and intend to apply for a Parental Order, you will be entitled to take unpaid leave to accompany the surrogate mother to up to 2 of her antenatal appointments.

6.3. Returning to work

If you return to work after your Ordinary Adoption Leave (OAL) then you have the right to return to the same role and terms and conditions you left before you went on adoption leave. If you are returning to work after your Additional Adoption Leave (OAL) then you have the right to return to the same role and terms and conditions you left before you went on adoption leave unless it is not practical for the school to do so, for example because the job no longer exists. If this is the case you should be offered another suitable role with the same terms and conditions where one exists. Please note that the right is to return to the same role, i.e. a teacher, teaching assistant, not to a specific class.

If you're returning to work at the end of your 52 week entitlement, you don't need to do anything. However, if you wish to return to work before the end of your full entitlement (52 weeks) or before a previously notified date, you will need to provide appropriate notice.

If you wish to change the date of your return to work, you must give at least 8 weeks notice of the expected date of return. If you fail to provide the required notice, your employer can postpone your return for up to 8 weeks (as long as this doesn't take you past the end of your 52 week leave period) and you will not be reinstated on payroll until you have returned to work.

If the period of adoption leave is cut short due to the disruption of the placement, you are required to give 56 days (eight weeks) notice prior to your early return in writing. You will continue to receive Statutory Adoption Pay, where eligible, for the duration of this notice period.

Flexible working arrangements

If you have 26 weeks continuous service, you may request to work more flexibly on your return from adoption leave. There is no automatic right for requests to be accepted but the School will give serious consideration to your request. Please refer to the Flexible Working Framework available on Schoolsnet for further information and guidance. Please note that any change in your contract on your return from adoption leave will be permanent and you will not have the right to return to your previous contract, unless a trial period is agreed.

Deciding not to return

If you decide not to return to work you should submit a written resignation and the normal process for terminating your employment and notice periods will apply. For teaching staff this will be set out in the Burgundy Book and for support staff this will be in your contract of employment.

6.4. Adoption leave and your employment contract

While you are on adoption leave, your employment service is regarded as continuous. This means that you continue to build up your entitlement to benefits such as annual leave and sick pay entitlements. Entitlement to any salary sacrifice benefits, such as childcare vouchers also continues when you take adoption leave.

The accrued annual leave must be taken at a time outside of your adoption leave period but will be offset by school closures either before or after the period of leave during your leave year. In the unlikely event that the leave cannot be taken during school closures in that school year, any outstanding balance must be taken during term time on your return to work. If there is not sufficient time left in a school term for all leave to be taken, the balance will be carried over to the new leave year (although once again the balance will be taken from school closure periods where possible).

Payment in lieu of annual leave will only be made where you don't return to work following adoption leave.

You are not entitled to receive Statutory Sick Pay (SSP) whilst in the period of entitlement to SAP. If you are sick when you are due to return to work, you should notify the school in the normal way and you will receive sick pay in line with your entitlements. Please note that this will not count as a return to work.

6.5. Impact on your pensions

If you are a member of the Local Government Pension Scheme (LGPS), the amount of pension you build up won't be affected by any period of adoption leave. This means that if you have a period of reduced pay or no pay during shared parental leave, your pension is still worked out using an average of your usual pensionable pay.

If you are a member of the Teachers Pension Scheme (TPS) and are receiving pay during your adoption leave then your pensionable service will continue and your contributions will be based on the pay you get while you're on leave. If you're not receiving pay you cannot choose to continue to make pension contributions during the unpaid period of leave - these days will be regarded as 'excluded days'.

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