All you need to know about Adoption, Surrogacy and Maternity leave

All you need to know about Adoption, Surrogacy and Maternity leave

Sometimes it can all seem a bit of a minefield for employers when it comes to statutory rights to time off for parents. With a variety of “options” and certain rules regarding notice to be given; it is always wise to sense check the latest government regulations.

Meanwhile here is a simple summary of the current Adoption, Surrogacy and Maternity leave rights for employees in the UK.

 

Statutory Maternity Leave

An employee qualifies for Statutory Maternity Leave if:

  • They are an “employee” not a ‘worker’
  • If the employee gives the employer the correct notice

i.e. At least 15 weeks before the due date, an employee must tell their employer when the baby is due and when they wish to start their maternity leave. The employer can ask for this in writing and must write to the employee within 28 days confirming maternity start and end dates.

It does not matter how long the employee has been employed by you or how many hours they work or how much they get paid; they will be entitled to maternity LEAVE.

Statutory Maternity Leave is 52 weeks. It’s made up of:

  • Ordinary Maternity Leave – first 26 weeks
  • Additional Maternity Leave – last 26 weeks
  • The employee does not have to take 52 weeks but must take 2 weeks’ leave after the baby is born (or 4 weeks if they work in a factory).

You may wonder what is the difference between “Ordinary maternity leave” and “Additional maternity leave”?

After Ordinary Maternity leave, an employee has the right to return to the same. However, if an employee also takes ‘additional maternity leave’; they still have the right to return to their job on the same terms as before they left; But if it’s not possible because there have been significant changes to the organisation, they could be offered a “similar” job. In this case, the job cannot be on worse terms than before. (For example, the following must be the same: pay, benefits, holiday entitlement, seniority, location.)

Start date and early births:

Usually, the earliest maternity leave can start is 11 weeks before the expected week of childbirth. Leave will also start:

  • the day after the birth if the baby is early
  • automatically if an employee is off work for a pregnancy-related illness in the 4 weeks before the week (Sunday to Saturday) that the baby is due.

To qualify for Statutory Maternity Pay (SMP) an employee must:

  • earn on average at least £120 a week
  • give the correct notice and proof that they are pregnant
  • have worked for you continuously for at least 26 weeks continuing into the ‘qualifying week’ – i.e. the 15th week before the expected week of childbirth

Statutory Maternity Pay (SMP) is paid for up to 39 weeks:

  • 90% of the employees average weekly earnings (before tax) for the first 6 weeks
  • £151.97 or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks
  • SMP is paid in the same way as wages (for example monthly or weekly). Tax and National Insurance will be deducted.
NOTE: An employee does not get Statutory Maternity Leave if they have a child through surrogacy or adoption – they could get Statutory Adoption Leave and Pay instead

Statutory Adoption Leave

To get Statutory Adoption Leave, the employee must:

  • been an “employee” not a ‘worker’
  • give the correct notice

i.e. Within 7 days of being matched with a child, they must tell the employer:

  • how much leave do they want
  • their leave start date
  • the ‘date of placement’ – the date the child is placed with them.

The employer can ask for this in writing and for proof of the adoption.

The employer must confirm the leave start and end dates within 28 days.

Statutory Adoption Leave is 52 weeks. It’s made up of:

  • 26 weeks of Ordinary Adoption Leave
  • 26 weeks of Additional Adoption Leave

Only 1 person in a couple can take adoption leave. (Note: The other partner could get paternity leave instead.)

If an employee is entitled to adoption leave, they can also get paid time off work to attend 5 adoption appointments after they’ve been matched with a child.

Adoption leave can start:

  • up to 14 days before the date the child starts living with the employee (UK adoptions)
  • when the child arrives in the UK or within 28 days of this date (overseas adoptions)
  • the day the child’s born or the day after (if you’ve used a surrogate to have a child)

Changing the dates of adoption leave:

An employee must tell their employer within 28 days if the date of placement (or UK arrival date for overseas adoptions) changes.

To qualify for Statutory Adoption Pay

  • the employee must have been continuously employed by the employer for at least 26 weeks by the week they were matched with a child
  • earn on average at least £120 a week (before tax)
  • give the correct notice
  • give proof of the adoption or surrogacy

An employee must tell the employer they want to stop work to adopt a child and when they want the Statutory Adoption Pay to start. They must give at least 28 days’ notice. An employer can ask for this in writing and for proof of the adoption.

Proof of adoption

The proof must show:

  • Employees name and address and that of the agency
  • the match date – for example the matching certificate
  • the date of placement – for example a letter from the agency
  • the relevant UK authority’s ‘official notification’ confirming you’re allowed to adopt (overseas adoptions only)
  • the date the child arrived in the UK – for example a plane ticket (overseas adoptions only)

Your employer must confirm within 28 days how much Statutory Adoption Pay you’ll get and when it will start and stop

Statutory Adoption Pay (SAP) is paid for up to 39 weeks:

  • 90% of the employees average weekly earnings (before tax) for the first 6 weeks
  • £151.97 or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks
  • SAP is paid in the same way as wages (for example monthly or weekly). Tax and National Insurance will be deducted.

Sources of reference:

https://www.gov.uk/maternity-pay-leave
https://www.gov.uk/adoption-pay-leave/pay


If you would like further guidance on this or any other HR topic, please contact Clover HR on 0121 516 0299 or email us at info@cloverhr.co.uk

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