Adoption and employment law
14 October 2021
Our article rounds up the key employment law rights applicable to adoptive parents ahead of National Adoption Week, which takes place next week from 18-23 October.
It is thought that almost 3,000 children are currently looking to be adopted in the UK but the number of adoptions in England alone has fallen by a third over the past few years. The Covid-19 pandemic made the process of adopting more difficult, and social services were limited in what they could do in terms of identifying vulnerable cases during lockdown. An increasing number of potential adopters are also looking to make use of fertility treatments before considering adoption.
This has resulted in a concerted effort to raise awareness about adoption. 18-23 October 2021 is Adoption Week in England (Scotland are running their one in mid-November and Wales held theirs last week) so we thought that the time was ripe for a round up of the employment rights and entitlements that apply to adoptive parents, especially given that some of these have changed in the past few years.
Adoption, paternity and shared parental leave
If a couple is adopting, they must designate one parent as the (primary) “adopter” for the purposes of leave and pay entitlements. The adopter has an entitlement of to up to 52 weeks’ statutory adoption leave. There is no longer any qualifying period of service, so adoption leave is a day one right just like maternity leave. The other adopter may take statutory paternity leave and both adopters may be eligible to opt in to the shared parental leave scheme if they meet the qualifying conditions. The (primary) adopter would need to inform their employer of their intention to curtail their adoption leave to opt in to the shared parental leave scheme, in the same way as for employees on maternity leave. If someone is adopting without a second parent they are entitled to statutory adoption leave.
Adoption leave can begin on the date a child is placed with the adopter or within 14 days before the date on which the child is expected to be placed.
During adoption leave an employee is entitled to all terms and conditions of employment except terms relating to pay.
The first six weeks of statutory adoption leave is paid at 90% of the employee’s normal weekly earnings with the following 33 weeks being paid at the lower of the prescribed statutory rate of £151.97 per week (from April 2021) or 90% of the employee’s normal weekly earnings. Before 2015, the entire period of 39 weeks was paid at the lower rate, but the position changed in 2015 to bring adoption pay in line with maternity pay. In practice, many employers match any enhancements made in respect of maternity pay so that they have a consistent approach towards both maternity and adoption.
Employees cannot claim multiple adoption pay entitlements if they adopt more than one child as part of the same adoption arrangement. This is consistent with maternity pay (there is no double entitlement for giving birth to twins) but it is particularly relevant for adoptions because, whereas multiple births are relatively unusual, it is relatively common for siblings of different ages to be adopted at the same time.
Adoption leave and pay is available only to parents who adopt through an adoption agency. Employees who adopt a child on a “private” basis are not eligible for adoption leave or pay, nor are step-parents who adopt their step-children.
Fostering to adopt
In 2015, the right to take adoption leave and pay was extended to include those who are approved for adoption under the “fostering for adoption” scheme. The idea behind the scheme is to reduce unnecessary moves in and out of foster care for the child, as they are placed with new permanent families sooner in the process. Under the extended legal framework, adoption leave can begin as soon as the child is placed with local authority foster parents who are expected to adopt the child.
Adoption leave and pay rights have also been extended to parents who enter into qualifying surrogacy arrangements. To qualify, parents must be eligible for a parental order in respect of the child (which means that, along with meeting other conditions, one of them must have provided the genetic material used to create the embryo).
One relatively recent change is the right for the (primary) adopter to take paid time off work for up to five adoption appointments. If there is a second adoptive parent they can take time off for two appointments but these are unpaid.
Dependants and parental leave
Dependant leave is available for an employee who needs to take time off in order to help a dependant – which, of course, includes an adoptive child. This is usually taken in an emergency or unexpected situation, generally on a temporary basis until measures can be put in place for a more sustainable solution or until the crisis has been sufficiently managed. An adoptive parent who has over one year’s service may also take parental leave to look after their child up to their 18th birthday. The entitlement is to a maximum of 18 weeks unpaid leave per child. An employee may take up to four weeks per year and it must be in blocks of one week at a time. Employers should be aware that there is more flexibility for parents of disabled children, for example the parental leave does not need to be taken in blocks of one week. This is particularly important to know in relation to adoptive parents because around 40% of children waiting for adoption have an impairment or some form of special need or disability.
The new right to parental bereavement leave, which gives two weeks of paid leave to working parents who lose a child under the age of 18, also applies to adoptive parents.
Many employers top up the statutory entitlements for birth parents, but what does that mean for adoptive parents? Research shows that over 90% of employers ensure that their adoption provisions mirror their maternity packages in terms of leave and pay.
A recent decision of the Employment Appeal tribunal (EAT) (Price v Powys County Council) supported an employer’s policy of enhancing adoption leave pay but not shared parental pay. The claimant had argued that, while maternity leave might serve various purposes over and above childcare (such as protecting the mother’s health and wellbeing), adoption leave was purely about childcare - meaning it was discriminatory on grounds of sex to enhance adoption leave pay but not shared parental leave pay. TheEAT, however, ruled that adoption leave is not purely about childcare. The purpose of adoption leave is also to form a parental bond and safe environment for the child, and in addition there are health and safety reasons for taking adoption leave. The court did not consider that a person taking shared parental leave was in a comparable position to someone taking adoption leave. This case is helpful for employers who are keen to match maternity provision for adoptive parents but are not in a position to enhance their shared parental leave entitlements.