Pay and time off work for adoptive parents

This document is also available in Portable Document Format (PDF). To view a PDF you must have Adobe Acrobat Reader installed on your machine.

Contents

Top

Information

Further help

For more information about SAP, you can:

Information on all aspects of employment legislation is also usually available from Citizens Advice Bureaux, low pay units, trade unions and other bodies.

An employee who is not entitled to SAP or SPP may be entitled to other government help. Please tell them to contact their adoption agency.

Statutory Adoption Pay/Statutory Paternity Pay calculators

Please see the interactive SAP/SPP calculators that will help you calculate the amount of SAP/SPP to pay.

Your Employer CD-ROM includes interactive Teach - Yourself packages that take you through the process of paying and recovering Statutory Paternity Pay and Adoption Pay.

The programs are in the learning zone on your CD-ROM.

Please see a list of Frequently Asked Questions on SAP and SPP.

Adoption/Paternity rights to leave and pay

The Department for Business, Enterprise and Regulatory Reform website gives information about adoption and paternity leave and pay.

Interactive information is available from the BusinessLink website.

Free confidential advice on employment law is available from the Advisory, Conciliation and Arbitration Service (Acas) website or phone 08457 47 47 47.

Employees and employers in Northern Ireland

Arrangements in Northern Ireland are similar to those in Great Britain, but there are differences in detail:

  • Northern Ireland has it own legislation covering SAP and SPP and adoption and paternity leave schemes.
  • Guidance on employment law and adoption and paternity leave is produced by the Department for Employment and Learning, see the phone book for contact details or visit the Department for Employment and Learning website.
  • If your employee lives in the Republic of Ireland please contact the Employer Helpline.
  • Guidance on employment law is covered by the Labour Relations Agency (LRA). For more information visit the LRA website or phone them on 028 9032 1442.

Throughout this Helpbook further references to either Advisory, Conciliation and Arbitration Service or Labour Relations Agency will be abbreviated to Acas or LRA.

Visits from HM Revenue & Customs

From time to time, our officers visit employers to see if their payroll is running smoothly. If we call on you we will ask to see your SAP/SPP records.

Penalties

Legislation provides that employers failing or refusing to operate the SAP scheme correctly can incur penalties. Like those in place for PAYE (Pay As You Earn) & National Insurance contributions (NICs) these penalties are civil, not criminal. The penalties cover the following offences:

  • a refusal by you to allow access to your records or a failure to comply with a formal information notice both of which attract a maximum penalty of £300 and £60 for each day the failure continues.
  • a failure to keep records could make you liable to a penalty up to a maximum of £3,000.
  • should you provide incorrect information or documents either fraudulently or negligently in response to a formal information notice the penalty is up to a maximum of £3,000.
  • if you fraudulently or negligently produce incorrect records the penalty is up to a maximum of £3,000.
  • any failure by you to give your employee the required information or the provision of incorrect information to your employee, either fraudulently or negligently, could make you liable to a penalty up to a maximum of £3,000.
  • the refusal or repeated refusal or failure by you to pay SAP to your employee or the payment of an incorrect amount of SAP due to either fraud or negligence could make you liable to a penalty up to a maximum of £3,000.
  • obtaining either fraudulently or negligently incorrect funding could make you liable to a penalty up to a maximum of £3,000.
  • anyone who fraudulently or negligently makes an incorrect statement or declaration to establish entitlement to Statutory Payments could be liable to a penalty up to a maximum of £3,000.

Where it is considered that a penalty is appropriate it will be imposed by either an Officer of HMRC or the Commissioners, but in all cases there is a right of appeal.

Any appeal against a penalty raised by an Officer of HMRC will be heard by the appeal Commissioners. Any appeal against a penalty determined by the Commissioners (on a question of law or against an amount) will be to the High Court, or in Scotland, to the Court of Session as the Court of Exchequer in Scotland.

The outcome of any appeal could see the penalty upheld, varied or dismissed.

Similar penalties apply to the incorrect operation of the Statutory Paternity Pay scheme.

Top

Terms and conditions used in this Helpbook

Who is an employee and who is an employer?

An employee is a person whose earnings are liable for Employer secondary and employee’s primary Class 1 NICs, or would be but for their age or level of earnings.

Whoever is liable to pay the employer Class 1 NICs is the employer.

An employee is someone working under a contract of employment. The employer is the person who is employing them under that contract. There does not have to be a written contract between an employee and employer.

For SAP/SPP purposes, if you have to deduct PAYE tax and Class 1 NICs for your employees, or would if their earnings are high enough, then you will have to pay them SAP/SPP if they satisfy all the qualifying conditions.

People who are classed as employed earners for Class 1 NICs liability, for example, agency workers, are also treated as employees.

Employees include office holders, for example police officers, Members of Parliament, the judiciary, and some company directors but are not employees for leave purposes.

If you are not sure who is an employee and who is an employer for pay, contact your local HMRC office.

If you are not sure who is an employee and who is an employer for leave contact Acas (visit the ACAS website or call 08457 47 47 47) or in Northern Ireland the LRA (visit the LRA website) or seek independent legal advice.

These are similar terms and conditions to Statutory Maternity Pay and leave see Helpbook E15 Pay and time off work for parents.

Statutory Adoption Pay (SAP)

This is a legal entitlement to a certain amount of pay to help an employee (male or female) adopting a child take time off work around the time the child is placed with them.

It is available to:

  • individuals adopting a child on their own, or
  • one member of a couple adopting a child together.

It lasts for up to 39 weeks.

The following terms are used when adopting a child:

  • Adopter – means the person(s) who are going to adopt a child. They may be going to adopt a child on their own, or with their partner.
  • Matched/Matching – means the adoption agency has decided that a person is suitable to adopt a particular child. The adoptive parent(s) may be given a ‘matching certificate’ letter from the agency.
  • Placed – means the child starts living with the person permanently with a view to being formally adopted in the future. They may have stayed with them before this date.
  • Lower earnings limit (LEL) for National Insurance purposes is shown as an amount of money. The LEL is the minimum amount of earnings that an employee needs to qualify for benefits. It is also the level that employees average weekly earnings must reach in a specific period, for them to qualify for SAP/SPP. For 2008-09 year the LEL is £90.00.

Adoption Leave

This is available to:

  • individuals adopting a child on their own, or
  • one member of a couple adopting a child together.

The adopter is allowed to take up to 26 weeks ordinary leave and 26 weeks additional leave but only the first 39 weeks are covered by SAP. The adopter is entitled to 52 weeks statutory adoption leave regardless of any entitlement to SAP.

Statutory Paternity Pay (SPP)

This is a legal entitlement to a certain amount of pay to help an employee (male or female) take time off after the child is placed with the adopter.

It is available to:

  • someone adopting a child with their partner, or
  • the partner of someone adopting a child on their own.

It is not available to someone who is a blood relative of the adopter, such as the adopter’s parent, grandparent, sister, brother, aunt or uncle.

Paternity leave

The employee can choose to have one or two whole weeks pay and leave. This must be taken in a single block by the 56th day after the date the child is placed with the adopter. An employee does not have to qualify for SPP to get paternity leave, but most will get both.

New from 6 April 2008

SAP and SPP Rates

Pay the lower of:

  • £117.18, or
  • 90 per cent of average weekly earnings for pay weeks commencing on or after 6 April 2008, the first Sunday in April.

Adoption leave for employees adopting a child expected to be placed with them on or after 6 April 2008.

The Government proposes to change the rules on Maternity leave for employees adopting a child expected to be placed with them on or after 6 April 2008, so that they are entitled to the benefit of the same non-pay contractual terms and conditions during Additional Adoption Leave as those that they are entitled during Ordinary Adoption Leave. For more information visit the Direct Gov website or in Northern Ireland visit the LRA website.

Merger of Employer Helpbooks

The Employer Helpbooks E16 Pay and time off work for adoptive parents and the E16 (Supplement), Special cases have now been merged for use from 6 April 2008. The merger of the Helpbooks will provide easier access to information on SAP/SPP for employers.

Couples adopting together

If your employee is adopting the child with their partner, the couple must choose who gets the SAP and adoption leave and who gets the SPP and paternity leave. Your employee will give you either:

  • the evidence of matching – for SAP and adoption leave, or
  • the declaration of family commitment – for SPP and paternity leave.

Please see the information about evidence.

Civil Partners

Couples who register as civil partners gain a package of rights and responsibilities reflecting those available to married couples. For the purposes of SAP/SPP entitlement, this means that exactly the same rules apply to married couples and civil partners.

Step parents and foster carers

SAP and adoption leave and SPP and paternity leave may be available to foster carers who go on to adopt a child if they satisfy the qualifying conditions:

  • the adopter must have been matched with the child for adoption by an adoption agency, and
  • the child will be placed with them for adoption.

If the adopters apply directly to the courts for an adoption order, they will not be eligible for Statutory Adoption Pay or leave.

Step parents will not usually qualify for SAP or SPP.

Further information relating to adoptions by foster carers and step parents is available on the BERR website.

Employment rights

Employees who exercise their rights to SAP and adoption leave and SPP and paternity leave have a legal right to:

  • protection against unfair treatment or dismissal
  • return to work.

The Department for Business, Enterprise and Regulatory Reform guidance gives information about adoption and paternity leave and pay. Interactive information is available visit the BusinessLink website.

For further information on employment rights, contact Acas (visit the ACAS website or call 08457 47 47 47) or in Northern Ireland the LRA (visit the LRA website).

Information on all aspects of employment legislation is also usually available from accountants, Citizens Advice Bureaux, employer organisations, low pay units, trade unions and other private and voluntary sector bodies.

Pay

As you work through the terms and conditions, if you decide that your employee is not entitled to SAP or SPP you will be told to issue a form SAP1 or SPP1. This will explain to your employee why you cannot pay them and what they need to do to get other Government help. It is important that you give them this form as soon as possible to help them with their claim. If your employee disagrees they can ask us to make a formal decision. If this happens we will give you more information at the time.

Leave

If there is a disagreement between you and your employee about their entitlement to leave, you will want first to discuss it together. See the further information about formal decisions. You will probably also find it helpful to contact Acas or LRA in N. Ireland. Visit the ACAS website or phone 08457 47 47 47 or the LRA website (for N. Ireland). Ultimately, if the dispute continues, your employee may want to take the case to an employment tribunal.

Top

Specific employments

Agency workers

Pay

There are various types of agency workers who are regarded as employees for SAP/SPP purposes. If a worker is treated as an employee for National Insurance purposes, they will also be treated as an employee for SAP/SPP purposes. If you have to deduct PAYE tax and Class 1 NICs from the agency worker’s earnings then you will have to pay them SAP/SPP if they satisfy all the qualifying conditions. If you’re not sure whether you have to deduct PAYE tax and Class 1 NICs from the agency worker’s earnings contact your local HMRC office.

The rules on evidence for entitlement, apply to agency workers.

You must consider whether:

Leave

Agency workers who are not employees (that is, not employed under a contract of employment) are not entitled to statutory adoption or paternity leave but you can agree other time off with them. If you’re not sure whether a worker is employed under a contract of employment visit the website of the Advisory, Conciliation and Arbitration Service (Acas) (or call 08457 47 47 47) or in Northern Ireland visit the website of the Labour Relations Agency (LRA).

Casual workers

General

A casual worker is usually someone who works for somebody as and when they are required, but:

  • they do not have to accept the work that is offered
  • the person with the work does not have to offer it to them.

Pay

If you have to deduct PAYE tax and Class 1 NICs from the casual worker’s earnings, then you will have to pay them SAP or SPP if they satisfy all the qualifying conditions. If you’re not sure whether you have to deduct PAYE tax and Class 1 NICs from the worker’s earnings contact your local HMRC office.

The rules on evidence for pay, apply to casual workers.

There are special rules for:

Leave

Casual workers who are not employees (that is, who are not employed under a contract of employment) are not entitled to statutory adoption or paternity leave but you can agree other time off with them. Casual workers who are employees could be eligible if they satisfy all the qualifying conditions. If you’re not sure whether a worker is employed under a contract of service or not, visit the website of the Advisory, Conciliation and Arbitration Service (Acas) or phone 08457 47 47 47 or in Northern Ireland visit the website of the Labour Relations Agency (LRA) or phone 028 90321442.

Mariners

Pay

Mariners cannot get SAP or SPP if:

  • they are employed on a foreign-going ship, or
  • you do not have a place of business in the UK.

Foreign-going mariners pay a special rate of National Insurance contributions under category letters:

R, T, W, Q, N, O, H, K, V.

Mariners can get SAP or SPP if you have a place of business in the UK and they are on a home-trade ship. There are special rules on ‘Has your employee worked for you long enough?’ for employees who work outside the UK. All the other rules apply.

If you’re not sure which of the above applies contact your local HMRC office.

Leave

Mariners can get adoption or paternity leave if they:

  • are employed on board a ship registered and maintained under Section 8 of the Merchant Shipping Act 1995, specifying a port in Great Britain or Northern Ireland as the port to which the vessel belongs
  • do not work wholly outside Great Britain or Northern Ireland
  • are ordinarily resident in Great Britain or Northern Ireland.

Mariners cannot get adoption or paternity leave if they are the master, or a member of crew, of a fishing vessel where they are paid only by a share of the profits or gross earnings of the vessel.

If you are not sure whether the mariner can get leave or not contact Acas or the LRA or seek independent legal advice.

Top

Forms you might need to use

Statutory Adoption Pay (SAP) forms

Evidence of matching

Your employee must give you documentary evidence to confirm that they are adopting a child through an adoption agency. This may be a letter from the agency, or a matching certificate for the purposes of SAP, confirming that the adopter/employee has been matched with a child.

Check that the evidence you are given shows:

  • the name and address of the adoption agency and of your employee
  • the date the child is expected to be placed for adoption, or the date the child was placed for adoption
  • the date your employee was told by the adoption agency that they had been matched with a child.

You must not pay SAP without acceptable evidence. If you are concerned about the evidence your employee has given you, contact the Employer Helpline for advice.

All the other adoption and paternity forms are available from the Employer CD-ROM or the Employers area of our website. Call the Orderline for a paper version.

Form SAP1, Why I cannot pay you SAP

Use this form to tell your employee that they are not entitled to Statutory Adoption Pay.

Form SAP2, Statutory Adoption Pay record sheet

Use this form to keep a record of Statutory Adoption Payments.

Form SC6, Evidence of entitlement to Statutory Adoption Pay and adoption leave when adopting from abroad – declaration of entitlement

Use this form to tell your employee the terms and conditions relating to entitlement to SAP when they are adopting the child jointly with their partner to declare that they are not also claiming SPP. The employee should give it to you as part of the evidence required for SAP.

Top

Statutory Paternity Pay (SPP) forms

Form SC4, Becoming an adoptive parent

Use this form to tell your employee about the terms and conditions relating to SPP. It includes a tear-off statement for your employee to tell you about dates and leave, with a declaration. You must have this declaration before you can make payments.

Form SPP1, Why I cannot pay you SPP

Use this form to tell your employee they are not entitled to SPP.

Form SPP2, Statutory Paternity Pay record sheet

Use this form to keep a record of statutory paternity payments and any changes in dates.

Form SC5, Evidence of entitlement to Statutory Paternity Pay when adopting from abroad – declaration of family commitment

Use this form to tell your employee the terms and conditions relating to entitlement to SPP and paternity leave when adopting from abroad. It includes a tear-off statement for your employee to tell you about dates and leave, with a declaration. You must have this declaration before you can make payments.

Top

Using your own forms – SAP

You can produce your own computerised or paper versions of these forms. There is no formal approval process but they must include all the information detailed below.

Form SAP1, Why I cannot pay you SAP

It must include:

  • your employee’s name, address and National Insurance number
  • the reason why you cannot pay Statutory Adoption Pay (SAP), or
  • if you have made some payment, but don’t think you should make any more:
    • the date you should stop paying
    • the reason why you should stop paying.

It will help your employee if you also include information about:

  • what they should do if they disagree with your decision
  • contacting the adoption agency to find out about other Government help.

Form SAP2, Statutory Adoption Pay record sheet

It must include:

  • your employee’s name and National Insurance number
  • a record of the payment dates and the amount paid
  • the date the SAP pay period began
  • a record of any weeks, in the 39 week period when SAP wasn’t paid, with reasons.

You may also find it helpful to record:

  • the date your employee was told by the adoption agency that they had been matched with a child
  • the date the child was expected to be placed
  • the date the child was placed
  • the date the employee told you they planned to start their adoption leave
  • the date they planned to start their adoption leave
  • if the employee changed their mind, when they told you the new date they wanted to start their leave, and the new date.

Form SC6, Evidence of entitlement to Statutory Adoption Pay and adoption leave when adopting from abroad – declaration of entitlement

It must include:

  • a declaration that they and their partner, are adopting a child together
  • the employee's name.

The employee should give you all the relevant information if they are adopting a child jointly with their partner to declare that they are not also claiming SPP. The employee should give it to you as part of the evidence required for SAP.

Top

Using your own forms – SPP

Form SC4 Becoming an adoptive parent

It must include your employee’s name and National Insurance number and a declaration that they:

  • have chosen not to receive SAP and adoption leave if they are adopting the child together with their partner
  • intend to support the adopter or care for the child
  • have or expect to have responsibility for the upbringing of the child, and
  • are either:
    • married to or a civil partner of the adopter, or
    • living with the adopter in an enduring family relationship, but are not an immediate relative.

It must also include:

  • the date the adoption agency told the adopter that they had been matched with the child
  • the date the child is expected to be placed, and the actual date the child is placed, if this is different
  • the date from which the employee wants to be paid Statutory Paternity Pay (SPP)
  • whether the employee wants to be paid one week or two.

Form SPP1 Why I cannot pay you SPP

It must include:

  • your employee’s name, address and National Insurance number
  • the reason why you cannot pay SPP, or
  • if you have made some payment, but don’t think you should make any more:
    • the date you should stop paying
    • the reason why you should stop paying.

It will help your employee if you also include information about what they should do:

  • if they disagree with your decision
  • to claim other Government help.

Form SPP2 Statutory Paternity Pay record sheet

It must include:

  • your employee’s name and National Insurance number
  • a record of the payment dates and the amount paid
  • the date the SPP pay period began
  • a record of any unpaid SPP, with reasons.

You may also find it helpful to record:

  • the date the adopter was told by the adoption agency that they had been matched with a child
  • the date the child was expected to be placed
  • the date the child was placed
  • the date your employee told you they planned to start their paternity leave
  • the date they planned to start their paternity leave
  • if your employee changed their mind, when they told you the new date they wanted to start their leave, and the new date.

Form SC5, Evidence of entitlement to Statutory Paternity Pay and paternity leave when adopting from abroad declaration of family commitment.

The evidence must contain a declaration that they:

  • have the prescribed relationship with the adopter and the child
  • intend to support the adopter or care for the upbringing of the child
  • are not also claiming SAP.

The evidence must also contain:

  • the employee's name
  • the date the child is expected to enter Great Britain or Northern Ireland or the actual date of entry
  • the date the adopter was sent the official notification
  • the date from which the employee wants to be paid SPP
  • whether the employee wants to be paid one week or two.

 

Top

Evidence for entitlement – SAP

Terms and conditions for SAP

Evidence of matching

Your employee must produce evidence that they are adopting a child through an adoption agency to get SAP. This may be a letter from the agency confirming that the adopter/employee has been matched with a child or a matching certificate for SAP purposes. Check that the evidence you are given shows:

  • the name and address of the adoption agency and of your employee
  • the date the child is expected to be placed for adoption, and
  • the date the adopter was told by the adoption agency that they had been matched with a child.

You must not pay SAP without acceptable evidence. If you are concerned about the evidence your employee has given you contact the Employer Helpline for advice.

Employee gives evidence

See Has your employee worked for you long enough?

Employee does not give evidence

Tell your employee that you cannot pay them without the evidence and they will need a good reason if they give it to you late.

Time limits

The time limit for producing evidence to get pay is 28 days before the start of the pay period. If there is a good reason for the evidence being produced late you must accept it.

Please note that sometimes there is very little time between the date the adoption agency tells your employee that they have been matched with a child and the date the child is placed with them. If your employee is late giving you evidence because of this you must accept it.

Evidence for entitlement - SPP

Terms and conditions for SPP

Declaration of family commitment

Give your employee form SC4 Becoming an adoptive parent. The SC4 advises them of the terms and conditions relating to SPP and paternity leave.

It also has a tear off slip for a declaration covering family commitment.

You must not pay SPP without a declaration.

If you consider that the employee has made a false declaration, you should contact your HMRC office for advice. They can investigate and, where appropriate, consider penalising the employee.

Employee gives declaration

See Has your employee worked for you long enough?

Employee does not give declaration

Tell your employee that you cannot pay them without the declaration and they will need a good reason if they give it to you late.

Time limits

The time limit for producing evidence to get pay is 28 days before the start of the pay period. If there is a good reason for the evidence being produced late you must accept it.

Please note that sometimes there is very little time between the date the adoption agency tells the adopter that they have been matched with a child and the date the child is placed with them. If your employee is late giving you evidence because of this you must accept it.

Top

Has your employee worked for you long enough?

Terms and conditions for SAP and SPP

Statutory Adoption Pay (SAP)

Length of employment (SAP)

To qualify for SAP and adoption leave your employee must be employed by you continuously for at least 26 weeks continuing into the week they were told by the adoption agency that they had been matched with a child. Count part weeks of employment as full weeks.

Find the date (PDF 27K) when the adoption agency told them that they had been matched with a child. Then read across to the latest start date for employment with you. If they started work after that date they don’t qualify, see ’Employee has not been employed long enough’ below.

Employee has been employed long enough

Go to ‘Does your employee earn enough?'

Employee has not been employed long enough

Give them form SAP1 Why I cannot pay you SAP. Take a copy of the evidence they got from the adoption agency, and give the original back to them.

Statutory Paternity Pay (SPP) and paternity leave

Length of employment (SPP)

The length of time your employee must have worked for you to get SPP and paternity leave is split into two and both conditions must be met.

Step 1

Find the date when the adoption agency told the adopter that they had been matched with a child in the table:

Then read across to the latest start date for employment with you. If they started work after that date they don’t qualify, see ‘Employee has not been employed long enough’ below.

Step 2

If your employee was working for you by the date in Step 1, then to get SPP and leave they must continue to work for you right up until the child is placed with the adopter. If your employee stops working for you before the child is placed with the adopter, they are not entitled to pay or leave.

Employee has been employed long enough

See Does your employee earn enough?

Employee has not been employed long enough

Pay – Give them form SPP1 Why I cannot pay you SPP. Take a copy of the declaration on form SC4 Becoming an adoptive parent, and give the original back to them.

Leave – Tell them that they don’t qualify for paternity leave. This doesn’t have to be in writing and there is no special form.

Employee leaves job after the adoption agency told the adopter that they had been matched with a child

Statutory Adoption Pay (SAP)

It doesn’t matter why they left or that they aren’t coming back - they are entitled to SAP as long as they don’t start working for another employer.

They must still give you evidence of matching, and tell you when they want their pay to start.

Statutory Paternity Pay (SPP)

If your employee stops work before the child is placed with the adopter they are not entitled to SPP.

If they stop work after the child is placed with the adopter, it doesn’t matter why they left or that they aren’t coming back - they are entitled to SPP as long as they don’t start working for another employer.

They must still give you the declaration of family commitment, and tell you when they want their pay to start.

Leave

Your employee cannot get adoption or paternity leave if they have left their job before the child is placed.

Employee works abroad

Statutory Adoption Pay (SAP)

Where your employee works for you outside the UK but within the European Economic Area (EEA) between:

they can get SAP, if you were liable to pay Class 1 National Insurance contributions (NICs) on their earnings throughout the period. There is a list of European Economic Area (EEA) countries.

They can still get SAP if you would have been liable to pay Class 1 NICs if their earnings had been higher.

If you weren’t liable to pay Class 1 NICs throughout the period and they worked for you in the EEA they may still be able to get SAP, see the paragraph below.

Where they work for you outside the UK but within the EEA between:

  • the latest start date for employment with you
  • the Sunday of the week when the adoption agency told them that they had been matched with a child

they can get SAP if:

They can still get SAP if you would have been liable to pay Class 1 NICs if their earnings had been higher.

All the other rules apply.

Statutory Paternity Pay (SPP)

The length of time an employee must have worked for you to get SPP is split into two. All the other rules, apply.

Step 1

Where they work for you outside the UK but within the EEA between:

  • the latest start date for employment with you, and
  • the Sunday of the week when the adoption agency told the adopter that they had been matched with a child

they can get SPP, if you were liable to pay Class 1 NICs on their earnings throughout the period.

They can still get SPP if you would have been liable to pay Class 1 NICs if their earnings had been higher.

If you weren’t liable to pay Class 1 NICs throughout the period and they worked for you in the EEA they may still be able to get SPP, see the paragraph below.

Where they work for you outside the UK but within the EEA between:

  • the latest start date for employment with you, and
  • the Sunday of the week when the adoption agency told the adopter that they had been matched with a child

they can get SPP if:

  • they worked for you in the UK in the week when the adoption agency told the adopter that they had been matched with a child, and
  • you were liable to pay Class 1 NICs on their earnings for that week.

They can still get SPP if you would have been liable to pay Class 1 NICs if their earnings had been higher.

Step 2

To get SPP your employee must continue to work for you from the week when the adoption agency told the adopter that they had been matched with a child right up until the child is placed. It does not matter where they work, or whether you are liable to pay Class 1 NICs.

Leave

Employees who work outside the UK but within the European Economic Area may be entitled to adoption or paternity leave under UK law. For more information please contact Acas or in Northern Ireland contact the LRA or seek independent legal advice.

Agency workers, supply teachers, seasonal workers or other sporadic employment

Pay - How long they must have worked for you

Top

Statutory Adoption Pay (SAP)

Agency workers

Agency workers may not have been placed with clients in every week between:

  • the latest start date for employment with you, and
  • the Sunday of the week when the adoption agency told them that they had been matched with a child.

A week means Sunday to Saturday. Count part weeks as full weeks.

If they were placed with clients by you in every week they can get SAP. If they were not placed with clients by you in every week, and particularly in the week when the adoption agency told them that they had been matched with a child, you need to check why not.

They can still get SAP if:

  • you did not have work to offer them
  • they didn’t work because they were on paid leave under the Working Time Regulations.

If you offered them work and they turned it down because they were sick they can still get SAP if they do some more work for a client through you within 26 weeks of their first day of sickness.

If they did not work in the week when the adoption agency told them that they had been matched with a child, then to get SAP they must do some more work for a client through you before starting their adoption absence.

Supply teachers, seasonal workers or other sporadic employment

Supply teachers, seasonal workers, and other sporadic employees who work as and when you need them, may not have worked for you in every week between:

  • the latest start date for employment with you, and
  • the Sunday of the week when the adoption agency told them that they had been matched with a child.

A week for SAP/SPP purposes in this instance means Sunday to Saturday.

Count part weeks as full weeks.

If they did work for you in every week they can get SAP.

If they didn’t work for you in every week you need to check why not.

They can still get SAP if they didn’t work because:

  • they were on paid leave under the Working Time Regulations, or
  • you did not have work to offer them.

If you offered them work and they turned it down, they may still be able to get SAP – check the relevant paragraphs, depending on why they turned the work down.

Top

Statutory Paternity Pay (SPP)

The length of time your employee must have worked to get SPP is split into two.

Step 1

They must work in every week between:

  • the latest start date for employment with you
  • the Sunday of the week when the adoption agency told the adopter that they had been matched with a child.

Step 2

To get SPP the employee must continue to work in every week from the week when the adoption agency told the adopter that they had been matched with a child, right up until the child is placed.

A week in this instance means Sunday to Saturday. Count part weeks as full weeks.

Agency workers

You may not have placed agency workers with clients in every week.

If they were placed with clients by you in every week they can get SPP. If they were not placed with clients by you in every week, and particularly in the week when the adoption agency told the adopter that they had been matched with a child, you need to check why not.

If you did not have work to offer them, they can still get SPP.

If you offered them work and they turned it down, they may still be able to get SPP.

If they didn’t work because they were on paid leave under the Working Time Regulations they can get SPP. For more information on Working Time Regulations, see Your guide to the Working Time Regulations

If they didn’t work because they were sick, then to get SPP they must do some more work for a client through you within 26 weeks of their first day of sickness.

If they did not work in the week when the adoption agency told the adopter that they had been matched with a child, then to get SPP they must do some more work for a client through you before starting their paternity absence.

Supply teachers, seasonal workers or other sporadic employment

Supply teachers, seasonal workers, and other sporadic employees who work as and when you need them, may not have worked for you in every week.

If they did work for you in every week they can get SPP.

If they didn’t work for you in every week you need to check why not.

They can still get SPP if:

  • they didn’t work because they were on paid leave under the Working Time Regulations
  • you did not have work to offer them.

If you offered them work and they turned it down, they may still be able to get SPP - check the relevant paragraphs, depending on why they turned the work down.

Top

Leave - general

Agency workers

If there is no contract of employment then agency workers cannot usually get adoption or paternity leave.

Supply teachers

Supply teachers who work under a contract of employment can get adoption and paternity leave. There are special rules on how long they must have worked for you, go to the paragraph below.

Seasonal workers or other sporadic employment

Seasonal workers and other employees who work under a contract of employment, as and when you need them, usually get adoption or paternity leave, but there are special rules on how long they must have worked for you, see Leave - How long they must have worked for you below.

Leave - How long they must have worked for you

Adoption leave

They may not have worked for you in every week between:

  • the latest start date for employment with you
  • the Sunday of the week when the adoption agency told them they had been matched with a child

A week in this instance means Sunday to Saturday. Count part weeks as full weeks. To check the latest start dates for employment with you, see:

If they did work for you in every week they can get adoption leave. If they didn’t work for you in every week you need to check why not.

If the contract does not continue, they can still get adoption leave if:

  • they are sick or injured and are then re-engaged within 26 weeks of the contract being terminated
  • work ceases temporarily
  • they are not working but their contract is regarded as continuing for some purposes, by arrangement or custom
  • they are not working for some other reason.

If you need more information about this please contact Acas or the LRA or seek independent legal advice.

Paternity leave

The length of time your employee must have worked to get paternity leave is split into two.

Step 1

They may not have worked in every week between:

  • the latest start date for employment with you
  • the Sunday of the week when the adoption agency told the adopter that they had been matched with a child

Step 2

They may not have continued to work in every week from the week when the adoption agency told the adopter that they had been matched with a child right up until their leave starts.

A week in this instance means Sunday to Saturday.

Count part weeks as full weeks. To check the latest start dates for employment with you, see:

If they did work for you in every week in Steps 1 and 2 they can get paternity leave. If they didn’t work for you in every week you need to check why not.

If they didn’t work because they were sick, on maternity, paternity, adoption or parental leave, on a temporary lay-off or on holiday, they can still get paternity leave if the contract continues.

If the contract does not continue, they can still get paternity leave if:

  • they are sick or injured and are then re-engaged within 26 weeks of the contract being terminated
  • work ceases temporarily
  • they are not working but their contract is regarded as continuing for some purposes, by arrangement or custom
  • they are not working for some other reason.

If you need more information about this please contact Acas or in Northern Ireland contact the LRA or seek independent legal advice.

Employees with an ongoing contract of service during such a break would remain continuously employed

Reinstatement after dismissal

If they did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

  • because you dismissed them
  • they are then reinstated because an employment tribunal decides that you dismissed them unfairly, or
  • if you reinstate them as a result of a statutory grievance procedure

they are entitled to SAP or SPP and paternity leave as if they had not been dismissed.

All the other rules apply.

Reinstatement following service in the Armed Forces

If your employee did not work for you during the whole period you worked out using information in the section Has your employee worked for you long enough? or the table:

  • because they were serving in the Armed Forces
  • they return to work for you within six months of the end of their service in the Forces under the Reserve Forces (Safeguard of Employment) Regulations

they may still be able to get SAP or SPP and paternity leave.

SAP

To get SAP they must have worked for you for at least 26 weeks, including the Sunday of the week when the adoption agency told them that they had been matched with a child. Do not count the period they served in the Armed Forces as part of the 26 weeks.

A week means Sunday to Saturday. Count part weeks as full weeks.

All the other rules apply.

SPP and paternity leave

The length of time your employee must have worked to get SPP and paternity leave is split into two.

Step 1

They must have worked for you for at least 26 weeks, including the week when the adoption agency told the adopter that they had been matched with a child.

A week means Sunday to Saturday. Count part weeks as full weeks. Do not count the period they served in the Armed Forces as part of the 26 weeks.

Step 2

They must continue to work for you right up until the child is placed.

All the other rules apply.

Top

Break in employment because of trade disputes or industrial action

If your employee did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

because they were on strike, they may still be able to get SAP or SPP and paternity leave.

SAP

To get SAP they must have worked for you for at least 26 weeks, including the week when the adoption agency told them that they had been matched with a child. Do not count the period they were on strike as part of the 26 weeks.

A week means Sunday to Saturday. Count part weeks as full weeks.

All the other rules apply.

SPP and paternity leave

The length of time your employee must have worked to get SPP and paternity leave is split into two.

Step 1

They must have worked for you for at least 26 weeks, including the week when the adoption agency told the adopter that they had been matched with a child.

Do not count the period they were on strike as part of the 26 weeks.

A week means Sunday to Saturday. Count part weeks as full weeks.

Step 2

They must continue to work for you right up until the child is placed.

All the other rules apply.

Break in employment because of temporary cessation of work

Short-term contract or agency workers who did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

because you did not have work to offer them, can get SAP or SPP and paternity leave. Employees with an ongoing contract of service during such a break would remain continuously employed.

All the other rules apply.

Break in employment because of public holidays

Short-term contract or agency workers who did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

because of public holidays, can get SAP or SPP and paternity leave. Employees with an ongoing contract of service during such a break would remain continuously employed

All the other rules apply.

Break in employment because of sickness or injury

Short-term contract or agency workers who did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

because they were sick or injured, can get SAP or SPP and paternity leave, if the total period of incapacity is 26 weeks or less. Employees with an ongoing contract of service during such a break would remain continuously employed.

All the other rules apply.

Break in employment because of maternity leave

Short-term contract or agency workers who did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

because:

  • she was on maternity leave, and she worked for you before and after the break, or
  • she was not working because of the birth, and she worked for you before and after the break, and the break is not more than 26 weeks

can get either SAP or SPP and paternity leave.

Employees with an ongoing contract of service during such a break would remain continuously employed.

All the other rules apply.

See the Employer Helpbook, E15(2008), Pay and time off work for parents, for more information about maternity leave.

Break in employment because of adoption leave

Short-term contract or agency workers who did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

  • because they were on adoption leave
  • they worked for you before and after the break

can get SAP or SPP and paternity leave. Employees with an ongoing contract of service during such a break would remain continuously employed.

All the other rules apply.

Break in employment because of paternity leave

Short-term contract or agency workers who did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

  • because they took paternity leave when they were adopting a child or when a baby was born, and
  • they worked for you before and after the break

can get SAP or SPP and paternity leave.

Employees with an ongoing contract of service during such a break would remain continuously employed. All the other rules apply.

Break in employment because of parental leave

Short-term contract or agency workers who did not work for you during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

  • because they took parental leave, and
  • they worked for you before and after the break

can get SAP or SPP and paternity leave.

Employees with an ongoing contract of service during such a break would remain continuously employed.

For more information on parental leave see Department for Business, Enterprise and Regulatory Reform publication

Parental leave - a guide for employers and employees

All the other rules apply.

Change of employer

If you take over a business and the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply, then continuity of employment is not broken. The Transfer of Undertakings (Protection of Employment) Regulations are often referred to as the TUPE regulations.

Usually the regulations apply when you take over the business as a going concern, with no interruption to trading, and take over the contracts of employment of all those employed in the business immediately before the transfer. If you are not sure if TUPE applies contact Acas, or in Northern Ireland the LRA.

If the regulations don’t apply, continuity of employment may still not be broken when:

  • one corporate body takes over from another as the employer by or under an Act of Parliament
  • the employer dies and their personal representative or trustees keep the employee on
  • there is a change in the partners, personal representatives or trustees
  • the employee moves from one employer to another and at the time of the move the two employers are associated, for example:
    • one is controlled by the other either directly or indirectly, or
    • both companies are controlled by a third party, either directly or indirectly
  • a teacher in a school maintained by a local education authority moves to another school maintained by the same authority, including maintained schools where the governors of the school, rather than the local education authority, are the teacher’s employer.

Where an employee of a health service employer moves to another health service while undergoing training, the continuity of training may be broken. If you need further advice contact the Employer Helpline.

If continuity of employment is not broken, the employee can also get SAP or SPP and paternity leave, as long as they work for you and the previous employer during the whole period you worked out using the information in the section Has your employee worked for you long enough? or the table:

If continuity of employment is broken and:

  • you take on the business after the start of the week when the adoption agency told the adopter that they had been matched with a child, the previous employer must pay SAP to the employee if they were employed by the previous employer in the week they were matched with a child. They will still be entitled to 52 weeks adoption leave
  • you take on the business before the start of the week when the adoption agency told the adopter that they had been matched with a child, the employee cannot get SAP. Their employment with you would not have been long enough for them to qualify. They will still be entitled to 52 weeks adoption leave.
  • you take on the business after the child is placed, the previous employer must pay SPP to the employee if they qualify
  • you take on the business before the child is placed, the employee cannot get SPP or paternity leave.

Top

Does your employee earn enough?

Terms and conditions for SAP and SPP

Earnings do not affect adoption or paternity leave.

What counts as earnings?

Use the amount before deductions such as PAYE, NICs and pension contributions.

Include:

  • Payments which are earnings for Class 1 National Insurance contributions (NICs). (Your employee does not have to have paid NICs.)
  • All earnings paid in the period, including money earned outside the period, such as holiday pay, overtime, bonuses and backdated pay rises.
  • Statutory Sick Pay.
  • Statutory Maternity Pay.
  • Statutory Paternity Pay.
  • Statutory Adoption Pay.

Statutory Adoption Pay (SAP)/Statutory Paternity Pay (SPP) depend on your employee’s Average Weekly Earnings (average weekly earnings) in a set period. See the quick method to find out if they qualify. But if you are in any doubt, or your employee disagrees with your decision, you must work through the detailed check on How to work out the set period and quick method to find out if they qualify. Always round up fractions of a penny when you work out 90 per cent of your employee's average weekly earnings for payment. When you work out how you pay, look at when the pay week began.

How to work out the set period

The ‘set period’ is needed to establish the earnings to be used and the number of days, weeks or months to divide those earnings by. All earnings paid in the set period will be divided by the number of days, weeks or months in that set period.

Regulations define the 'set period' as the period between:

Date 1 the last normal pay day on, or before the Saturday of the matching week; this is the week the adopter is told by the adoption agency that they have been matched with a child. This pay day will be Date 1 and is the end of the set period.

Date 2 find the last normal pay day falling not less than eight weeks before the pay day at Date 1. Date 2 will be the day after this pay day and is the start of the set period.

You should include all the earnings paid on, or after, Date 2, up to and including those paid on Date 1.

The set period ends with the last normal pay day on or before the end of the matching week and starts with the day after the last normal pay day at least eight weeks before that.

See the examples below on how to work out the set period and Average Weekly Earnings correctly.

Example - weekly paid employee

Employee paid every Friday

Matching week 25 May 2008 to 31 May 2008

The set period is therefore from 5 April 2008 to 30 May 2008

Average Weekly Earnings - Total earnings £860.21 ÷ 8 = £107.52625

Do not round this Average Weekly Earnings figure up or down to whole pence.

Example – monthly paid employee

Employee paid on the last working day of month.

Matching week 25 May 2008 to 31 May 2008

The set period is therefore 1 April 2008 to 30 May 2008

Average weekly Earnings - Total earnings = £1,409.30 ÷ 2 X 12 = £8455.80 ÷52 = £162.61153

Do not round this Average Weekly Earnings figure up or down to whole pence.

Quick method for calculating Average Weekly Earnings (average weekly earnings)

The adoption agency told the adopter that they had been matched with a child between 6 April 2008 and 4 April 2009.

If your employee always earns less than £90.00 gross a week they will not qualify for Statutory Adoption Pay or Statutory Paternity Pay. See the Employee does not earn enough section below.

If your employee sometimes earns more or less than £90.00 a week, you must work out their Average Weekly Earnings (average weekly earnings)to find out how much to pay them. Use the weekly check sheet (PDF 77K) or the monthly check sheet (PDF 59K).

Weekly paid - how to work out average weekly earnings

To work out average weekly earnings you must:

  • always use the set period - worked out using the check sheet
  • only include earnings from the set period.

Employee earns enough

If the amount at 6:

  • is at least £87.00 gross a week and the adoption agency told the adopter that they had been matched with a child between 1 April 2007 and 5 April 2008
  • is at least £90.00 gross a week and the adoption agency told the adopter that they had been matched with a child between 6 April 2008 and 4 April 2009

See When should your employee give you dates for pay and leave?.

Employee does not earn enough

If the amount at 6 is less than £90.00, they don't earn enough:

  • if they’ve asked for SAP give them form SAP1, Why I cannot pay you SAP. Take a copy of the evidence they got from the adoption agency and give the original back to them
  • if they’ve asked for SPP give them form SPP1, Why I cannot pay you SPP. Take a copy of the declaration on form SC4, Becoming an adoptive parent, and give the original back to them.

Monthly paid - how to work out average weekly earnings

To work out average weekly earnings you must:

  • convert monthly pay into an average weekly amount
  • always use the set period - worked out using the check sheet
  • only include earnings from the set period.

Employee earns enough

If the amount at 9:

  • is at least £87.00 gross a week and the adoption agency told the adopter that they had been matched with a child between 1 April 2007 and 5 April 2008
  • is at least £90.00 gross a week and the adoption agency told the adopter that they had been matched with a child between 6 April 2008 and 4 April 2009

See When should your employee give you dates for pay and leave?.

Employee does not earn enough

If the amount at 9 is less than £90.00, they don't earn enough:

  • if they’ve asked for SAP give them form SAP1, Why I cannot pay you SAP. Take a copy of the evidence they got from adoption agency and give the original back to them
  • if they’ve asked for SPP give them form SPP1, Why I cannot pay you SPP. Take a copy of the declaration on form SC4, Becoming an adoptive parent, and give the original back to them.'

Employee paid at irregular intervals

If you pay your employee at irregular intervals because they don't work for you during every pay period, see Agency workers, supply teachers, seasonal workers or other sporadic employment

If you do not pay your employees in a regular pay pattern use the check sheet below for employees paid at irregular intervals to work out their average weekly earnings.

Directors

If the director is contractually paid a regular salary calculate their average weekly earnings like any other employee; see Quick method for calculating Average Weekly Earnings. The director may also be paid a bonus or fees by a formal vote. If so, only include this if it is paid in the set period.

If the director is paid by a formal vote, calculate their average weekly earnings using the check sheet below. A formal vote usually takes place at the company’s Annual General Meeting and is agreed in the company minutes.

A director who is paid by a formal vote may draw money from the business on a regular basis. Do not include this money when working out the director’s average weekly earnings.

Weekly paid employee gets regular payment earlier or later than normal

This usually happens when you pay a week's wages early because of a holiday.

Follow Steps 1 to 5 of the weekly check sheet (PDF 33K). At Step 6 divide the figure in Step 5 by the number of weeks’ wages in the payment.

Weekly paid employee without whole number of weeks in the set earnings period

This usually happens when you have to bring your employee’s normal pay day forward because of Bank Holidays at Easter or Christmas.

Follow Steps 1 to 5 of the weekly check sheet (PDF 33K). At Step 6 divide the figure in Step 5 by the number of weeks' wages in the payment.

Agency workers, supply teachers, seasonal workers or other sporadic employment

Employees paid in multiples of a week

Use the weekly check sheet (PDF 33K). At Step 6 you must still divide the figure in Step 5 by the number of whole weeks in the set period, even if your employee was not paid for some of the weeks.

Employees paid calendar monthly

Use the monthly check sheet (PDF 31K) to work out their average weekly earnings.

Change of employer in the set earnings period

If you:

You must still add together all their earnings in between the dates in Steps 4 and 3 (inclusive) even where some of them were paid by the previous employer.

Employees with more than one job

Your employee could have more than one job with you or work for you and another employer.

If all the employee’s earnings have to be added together to work out Class 1 National Insurance contributions (NICs) they have to be added together to work out the employee’s average weekly earnings, and the employee could only get one lot of SAP or SPP.

If Class 1 NICs are worked out separately on the employee’s earnings, then you must work out their average weekly earnings separately, and the employee can get more than one lot of SAP or SPP. See more information about paying SAP/SPP in these circumstances.

For more information on how to work out Class 1 NICs for employees with more than one job see the booklet CWG2(2008) Employer Further Guide to PAYE and NICs. See 'Employer Helpbooks' inside cover, for details of how you can obtain one.

Salary sacrifice

Some schemes for childcare support provided by you and made available to your employees may be exempt from PAYE tax and Class 1 National Insurance contributions (NICs).

For the purposes of calculating average weekly earnings for SAP/SPP the calculation is based on earnings which are subject to NICs. This means that where an employee is taking a salary sacrifice, for example, Childcare Vouchers, their SAP/SPP entitlement will be assessed on their gross earnings that remain after taking off the value of the Childcare Voucher. No NIC are paid on the vouchers. Further information on the PAYE and NICs treatment of childcare provisions can be found in Employer Helpbook E18.

Earnings in set period affected by a backdated pay rise

Statutory Adoption Pay (SAP) and

Statutory Paternity Pay (SPP)

If the employee gets a backdated pay rise paid after the set period which increases the amount of earnings already paid in the set period for working out their average weekly earnings and their average weekly earnings were less than £90.00 you must:

  • recalculate their average weekly earnings
  • pay the extra SAP or SPP due.

NHS employees

NHS employees whose contracts are split between Strategic Health Authorities and NHS Trusts, as a result of NHS re-organisation, can choose to have all their earnings added together for working out average weekly ernings for SAP and SPP purposes.

For further information contact the Employer Helpline.

Earnings in the set period include correction of an overpayment/ underpayment of wages

If you have adjusted an employee’s wages to correct an over or underpayment in an earlier pay period, the actual amount of gross earnings paid within the set period will be those that have taken this adjustment into account.

For example, the employee was overpaid £50.00 in their June pay. To correct the error, this amount was then deducted from their August pay which fell within the set period between 1 August and 30 September.

The average weekly earnings in the set period were therefore £50.00 less than those earnings which would normally have been used.

Employee does not qualify and some of their earnings are included in a PAYE Settlement Agreement

If your employee has average weekly earnings of less than:

  • £90.00 gross and the adoption agency told the adopter that they had been matched with a child between 6 April 2008 to 4 April 2009
  • £87.00 gross and the adoption agency told the adopter that they had been matched with a child between 1 April 2007 and 5 April 2008

and they got any expense payments or benefits in kind in the set period, which were included in a PAYE Settlement Agreement you may need to re-calculate their average weekly earnings.

If any of these expense payments and benefits in kind would have been liable for Class 1 NICs if they had not been included in the PAYE Settlement Agreement, you must re-calculate your employee's average weekly earnings including these expense payments and benefits in kind..

PAYE Settlement Agreements are a more flexible way of dealing with some expense payments and benefits in kind. Earnings included in a PAYE Settlement Agreement are liable for Class 1B NICs.

For more information on PAYE Settlement Agreements and whether something is liable for Class 1 NICs, see the CWG2(2008) Employer Further Guide to PAYE and NICs.

Some of the employee’s earnings are included in a PAYE Settlement Agreement and earnings in set period are covered in a backdated pay rise

If you had to re-calculate your employee’s earnings because they did not qualify and:

  • some of their earnings were included in a PAYE Settlement Agreement, and
  • they then get a backdated pay rise which increases the amount of earnings already paid in the set period for working out their average weekly earnings, and
  • their average weekly earnings are less than £90.00

you must re-calculate their average weekly earnings (PDF 33K)

Re-calculating your employee’s average weekly earnings

Step 1

Re-calculate their average weekly earnings using the earnings paid in the set period as increased by the backdated pay rise. Do not include any PAYE Settlement Agreement expense payments and benefits in kind at this stage.

If the new average weekly earnings amount is at least:

  • £87.00 gross and the adoption agency told the adopter that they had been matched with a child between 1 April 2007 and 5 April 2008
  • £90.00 gross and the adoption agency told the adopter that they had been matched with a child between 6 April 2008 and 4 April 2009

your employee’s earnings are high enough to get SAP/SPP. So:

  • work out the total amount of SAP/SPP they are now entitled to
  • take away any SAP/SPP you have already paid them
  • pay any extra SAP/SPP due.

They may not be entitled to any extra SAP/SPP because their average weekly earnings with the backdated pay rise, excluding the PAYE Settlement Agreement earnings, are less than their original average weekly earnings. You can now include the PAYE Settlement Agreement earnings to see if they may be entitled to any extra SAP/SPP.

If the re-calculated earnings are still less than their original average weekly earnings, do nothing.

If the new average weekly earnings are less than the LEL go to Step 2.

Step 2

Re-calculate their average weekly earnings using the earnings paid in the set period as increased by the backdated pay rise including the expense payments and benefits in kind.

If the new average weekly earnings amount is at least:

  • £87.00 gross and the adoption agency told the adopter that they had been matched with a child between 1 April 2007 and 5 April 2008
  • £90.00 gross and the adoption agency told the adopter that they had been matched with a child between 6 April 2008 and 4 April 2009

your employee’s earnings are high enough to get SAP/SPP. So:

  • work out the total amount of SAP/SPP they are now entitled to
  • take away any SAP/SPP you have already paid them
  • pay any extra SAP/SPP due.

If the new average weekly earnings are less than the LEL shown above they still cannot get SAP/SPP.

  • If they asked for SAP - give them form SAP1, Why I cannot pay you SAP. Take a copy of the evidence they got from the adoption agency and give the original back to them.
  • If they asked for SPP - give them form SPP1, Why I cannot pay you SPP. Take a copy of the declaration on form SC4, Becoming an adoptive parent, and give the original back to them.

SAP/SPP entitlement where overpayment/underpayment of wages is made in the set period

Calculation of average weekly earnings (AWE) is always based on all earnings actually paid within the set period, regardless of any overpayment or underpayment of wages made in the set period.

So where an overpayment or underpayment of wages was made within the set period, it is this over or underpaid amount that must be included in the AWE calculation for deciding if SAP or SPP is due.

This may mean that an employee is eligible for SAP or SPP even if their AWE would otherwise have been below the LEL, or they may not qualify for SAP or SPP where an underpayment of wages means their AWE fall below the LEL.

Any overpayment or underpayment of wages should be adjusted in the normal way and your wage records noted accordingly.

Top

When should your employee give you dates for pay and leave?

Terms and conditions for SAP and SPP

Top

Statutory Adoption Pay and adoption leave

Time limits

Your employee should tell you when they want to take their leave within seven days of the date they are told they have been matched with the child. Where possible they should tell you 28 days before they want to start to be paid. But in practice there is often very little time between the dates they are matched with the child and the child is placed. If your employee is late giving you notice because of this you must accept it.

You can ask them to tell you in writing. You must confirm the date you expect them back, in writing, within 28 days of getting their notice. (See sample Text A and B to include in your letter.)

Notice can be given:

  • personally
  • by someone else
  • by post, fax or e-mail.

Choosing dates

Your employee has the right to choose when they want to start their adoption leave. The date cannot be more than 14 days before the placement date and must start no later than the date the child is placed, or the day after that if they were at work that day.

You should discuss and agree a suitable start date with your employee. They may have had good reasons why they could not give you proper notice, and if so you should accept them. If not, you are entitled to insist on a notice period which suits you but you cannot in any circumstances delay the start of leave beyond the date the child is expected to be placed.

If your employee doesn’t choose to take their full leave entitlement they must give you 28 days notice of when they intend to start work again.

Change of mind

Your employee can change their mind about the start date but should give you 28 days notice of their intended start date. Employers should allow sufficient flexibility of notice because of the possible differences between the expected date of placement and the actual date of placement.

Employee gives acceptable notice

Pay and leave. See the Flowchart - Operating the Statutory Adoption Pay (SAP) and Statutory Paternity Pay (SPP) schemes (PDF 73K) to make a final check on all the terms and conditions.

Employee does not give acceptable notice

Pay and leave. If your employee didn’t give you acceptable notice you can delay the start of leave and the pay period until you have had 28 days notice of their intended dates but you cannot delay the start of leave beyond the date the child is placed. Employers should allow sufficient flexibility of notice because of the possible differences between the expected date of placement and the actual date of placement.

If your employee didn't give acceptable notice give them form SAP1, Why I cannot pay you SAP.

Take a copy of the evidence they got from their adoption agency and give them the original back.

Top

Statutory Paternity Pay and paternity leave

Time limits

Your employee should tell you when they want to take their leave within seven days of the date the adopter was told they have been matched with the child. Where possible they should tell you 28 days before they want to start to be paid. But in practice there is often very little time between the dates the adopter is matched with the child and the child is placed. If your employee is late giving you notice because of this you must accept it. You can ask them to tell you in writing.

Notice can be given:

  • personally
  • by someone else
  • by post, fax or e-mail.

Choosing dates

Your employee has the right to choose when they want to take leave within a set period. They can choose to take one or two consecutive weeks leave, but not two separate weeks.

Leave can start:

  • from the date the child is placed with the adopter, but not before this, or
  • a pre-determined date later than above, but
  • cannot continue more than eight weeks (56 days) after the date the child is placed with the adopter.

You should discuss and agree a suitable start date with your employee. They may have had good reasons why they cannot give you proper notice, and if so you should accept them. If not, you are entitled to insist on a notice period which suits you.

Change of mind

Your employee can change their mind about the start date but should give you 28 days notice of their intended date. Employers should allow sufficient flexibility of notice because of the possible differences between the expected date of placement and the actual date of placement.

Employee gives acceptable notice

Pay and leave. See the Flowchart - Operating the Statutory Adoption Pay (SAP) and Statutory Paternity Pay (SPP) schemes (PDF 73K) to make a final check on all the terms and conditions.

Employee does not give acceptable notice

Pay and leave. If your employee didn’t give you acceptable notice you can delay the start of leave and the pay period until you have had 28 days notice of their intended dates. Employers should allow sufficient flexibility of notice because of the possible differences between the date the child is expected to be placed and the actual date that the child is placed.

Acknowledging your employee's notice for SAP

You must write to your employee within 28 days of the date they told you they want to start their Statutory Adoption leave, to confirm:

  • the date they intend to stop work
  • the date you expect them to return to work.

Unless you have already been informed otherwise, you should assume your employee is taking their full 52 weeks adoption leave.

Text A

As we discussed, you are eligible for 52 weeks adoption leave. Given your chosen start date of (insert date) your adoption leave will end on (insert date). You are also eligible for 39 weeks Statutory Adoption Pay (SAP). Your adoption pay will be £ (insert amount) from (insert date) to (insert date).

If you want to change the date your adoption leave starts, you must, where possible, tell me at least 28 days before your proposed new start date or 28 days before (insert leave start date) whichever is sooner.

If you decide to return to work before (insert date leave ends) you must give me at least 8 weeks notice.

If you decide not to return to work, you must still give me proper notice. Your decision will not affect your entitlement to SAP.

If you have any questions about any aspect of your adoption entitlements please do not hesitate to get in touch with me.

There are also two example letters on the Employer CD-ROM to use when you notify your employee of the date that the adoption leave ends.

If your employee wishes to change their return date:

  • and they want to return earlier then previously notified, they must give you 8 weeks notice of the new return date
  • and they want to return later than previously notified, they must give you 8 weeks notice before the original return date.

You may accept less notice if you wish.

Use ‘Text A’ if your employee is entitled to SAP, and ‘Text B’ if your employee is not entitled to SAP.

Text B

As we discussed, you are not eligible for Statutory Adoption Pay (SAP).

The form SAP1 (enclosed) explains why you do not qualify for SAP. You should contact your adoption agency to find out if you can get any other help.

However, you are entitled to 52 weeks adoption leave. Given your chosen start date (insert date) your adoption leave will end on (insert date).

If you want to change the date your adoption leave starts you must, if possible, tell me at least 28 days before your proposed new start date or 28 days before (insert leave start date) whichever is sooner.

If you decide to return to work before (insert date leave ends), you must give me at least 8 weeks notice.

If you decide not to return to work, you must still give me proper notice.

If you have any questions about any aspect of your adoption entitlements please do not hesitate to get in touch with me.

Employee leaves job after the date the adoption agency tells the adopter that they have been matched with a child

SAP

Your employee is still entitled to SAP. Your employee should give you 28 days notice of when they want to start to be paid if they can.

You can start paying your employee SAP up to 14 days before the day the child is placed, but no later than the day the child is placed or the day after if the employee is at work that day.

If they don’t want to start being paid before the child is placed they must tell you when the child is placed so you know when to start paying them. Do not start paying on the assumption that the child was placed on the expected date.

SPP

Your employee must remain employed by you until the child is placed to get SPP.

If your employee can get SPP they should still give you 28 days notice of when they want to start to be paid if they can.

They must tell you when the child is placed so you know when to start paying them. Do not start paying them on the assumption that the child was placed on the expected date.

Top

Employee adopting a child from abroad

This is when an individual or couple who live and work in the United Kingdom:

  • adopts a child from another country, and
  • the child enters Great Britain or Northern Ireland to live with the adoptive parents, and
  • the adoption does not involve the placement of that child for adoption under United Kingdom law.

Statutory Adoption Pay (SAP) and adoption leave

Employees who adopt a child from abroad can get Statutory Adoption Pay and adoption leave and Statutory Paternity Pay and paternity leave if they follow the appropriate procedures.

Different Terms and Forms

Official notification

The procedures for adopting a child from abroad are different from domestic adoptions. The adopter is not matched with a child for adoption so there is no Matching Certificate. Instead, if the relevant UK authority agree that the adopter is suitable to adopt a child from overseas, they send a Certificate of Eligibility to the overseas authority and send Official Notification of this to the adopter. The employee will need to keep this document so you should take a copy for your records. They cannot receive Statutory Adoption Pay or adoption leave unless they have obtained official notification from the relevant UK authority that they are eligible to adopt a child from overseas.

Declaration of Entitlement – Form SC6

The employee must complete a declaration giving the date the child is expected to enter the UK and also declare that they are not also claiming SPP. Form SC6 is available for this purpose, or you may use your own form.

Evidence of entry into UK

The employee will need to give you evidence that the child has actually entered the UK to live with them, such as plane tickets or copies of entry clearance documents.

The qualifying conditions

There are some differences in the qualifying conditions for Statutory Adoption Pay and adoption leave when an employee is adopting a child from abroad. Your employee must satisfy all of the following:

  • be adopting a child from abroad
  • the child is not being placed for adoption under UK Law
  • have stopped working for you to start their Adoption Pay Period or take adoption leave
  • have been continuously employed by you for at least 26 weeks continuing into the week in which they received Official Notification from the relevant UK authority, or by the time they want to start their Adoption Pay Period and/or adoption leave
  • have average weekly earnings of not less than the lower earnings limit for NI purposes which applies at the end of the week in which they were sent Official Notification from the relevant UK authority of their eligibility to adopt a child from overseas or the week they complete 26 weeks continuous service if this is later, and
  • give you enough notice that they expect to be entitled to SAP and adoption leave.

They should tell you at least 28 days before they want to start their SAP and adoption leave.

If your employee does not satisfy all these qualifying conditions for SAP and adoption leave, give them form SAP1.

The rules

Notifying you of adoption from abroad

As with domestic adoption pay and leave, notice does not have to be in writing unless you want it to be and may be given to you on your employees behalf. If posted, the notice is treated as given on the date it was posted.

There are three stages when your employee should give you notice, which are different from those for domestic adoption.

First stage

Your employee must tell you:

  • the date on which they received official notification from the relevant UK authority of their eligibility to adopt a child from overseas, and
  • the date the child is expected to enter the UK.

If they have already completed 26 weeks continuous employment when the official notification from the relevant UK authority was received, they must tell you within 28 days of re