Family friendly employment rights for LGBTQ+ parents

The Equality Act 2010 enshrined discrimination laws in one piece of legislation, including laws preventing employers from discriminating based on sexual orientation and gender reassignment. Family friendly legislation has had to keep up by becoming more inclusive and look at employment rights for LGBTQ+ parents. Although there are no additional rights given to those who identify as LGBTQ+, those within this community are more likely than others to use alternative methods of starting a family, such as adoption, surrogacy, or IVF. 

This article discusses the various family friendly rights and entitlements an employee within the LGBTQ+ community has.

Antenatal care

All pregnant employees have a statutory right to paid time off during working hours for the purpose of receiving care related to their pregnancy, regardless of their length of service. 

An employee who is in a ‘qualifying relationship’ with a pregnant employee or their expected child is entitled to take unpaid time off to accompany the pregnant employee to antenatal appointments. This unpaid time off is capped at two appointments, lasting up to 6.5 hours each. 

A ‘qualifying relationship’ means: 

  • they are the parent, pregnant employee’s husband or civil partner;
  • they live with the pregnant employee in an enduring family relationship and are not the parent, grandparent, sibling, aunt or uncle of the pregnant employee;
  • are the expected child’s father; or
  • are one of a same-sex couple who is to be treated as the child’s other parent; 

When having a child via surrogacy, the intended parents, who will become the child’s legal parents, are also entitled to unpaid time off to accompany the surrogate mother for two antenatal appointments, lasting a maximum of 6.5 hours each. 

When completing a course of IVF, there is no legal right for time off work for treatment, or IVF related sickness. 

When adopting a child, the ‘main’ adopter is entitled to paid time off for up to five adoption appointments. The ‘secondary’ adopter is entitled to unpaid time off for up to two adoption appointments.

Maternity leave

Mothers who give birth, are entitled to 52 weeks’ leave. This leave can start up to 11 weeks prior to the expected week of childbirth. The mother may be entitled to statutory maternity pay for 39 weeks, subject to certain qualifying conditions. A further 13 weeks may be taken as unpaid leave.

Paternity leave

Eligible employees, regardless of sexual orientation or gender, are entitled to take up to two weeks of paternity leave. An employee may choose to take a single period of leave of either one week or two weeks, or two non-consecutive periods of leave of a week each. This leave must be taken within 52 weeks of a child’s birth or placement for adoption.

To be eligible to take paternity leave, an employee:

  • Must have sufficient service with their employer
    • In birth and surrogacy cases, the employee must have been continuously employed by their employer for a period of 26 weeks or more, ending with the week immediately prior to the 14th week before the child’s expected week of childbirth.
    • In adoption cases, the employee must have been continuously employed by their employer for a period of 26 weeks or more, ending with the week in which the child’s adopter is notified that they have been matched with a child
  • Must have one of the specified relationships with either the child, the child’s mother, or (in adoption cases) the adopter.
    • In birth cases, the employee must either be the child’s biological father or be the child’s mother’s spouse, civil partner or partner. 
    • In surrogacy cases, at least one of the parental order parents must be the child’s biological parent, having provided sperm or egg for the embryo carried by the surrogate mother. The other parental order parent must be their spouse, civil partner or partner.
    • In adoption cases, the employee must be either the spouse, civil partner or partner of the child’s ‘main’ adopter.
  • Must have (or expect to have) a sufficient degree of responsibility for the child’s upbringing 
    • In birth cases, the employee must have the required degree of responsibility for the child’s upbringing, depending on their relationship with the child:
      • If the employee is the child’s biological father, he must have, or expect to have, some responsibility for the child’s upbringing 
      • If the employee is not the child’s biological father but is married to, the civil partner of or the partner of the child’s mother, the employee must have or expect to have the main responsibility for the child’s upbringing. 
    • In surrogacy cases, the employee must be a parental order parent, and must have, or expect to have, the main responsibility for the child’s upbringing.
    • In adoption cases, the employee must have, or expect to have, the main responsibility for the child’s upbringing.
  • Must not have already taken shared parental leave in respect of the same child. 
  • Must give the employer the required notice and (where requested) the necessary evidence of entitlement.

Adoption and Surrogacy

Regardless of the child being born via surrogate or placed by an adoption agency, the adoptive parents have the same rights as birth parents. 

Couples must elect who will be ‘the main adopter’ or ‘Parent A’ in cases of surrogacy. ‘The main adopter’ or ‘Parent A’ have the following rights, comparable to the rights granted to those on maternity leave:

  • Up to 52 weeks’ statutory adoption leave, split into 26 weeks’ ordinary adoption leave and 26 weeks’ additional adoption leave. 
    • Ordinary adoption leave begins on the date on which the child is born unless the employee is at work on that date in which case their leave will begin the following day.
    • Where a child is placed from overseas, the employee can choose to start their ordinary adoption leave on the date which the child enters Great Britain or a predetermined date which is no later than 28 days after that date.
  • Statutory adoption pay for up to 39 weeks.
  • The right to return to the same job (or, in certain circumstances, to return to a suitable and appropriate alternative job).
  • Protection from detriment or dismissal relating to adoption leave.
  • Priority to be offered suitable alternative employment.

Their partner or spouse may then be entitled to up to two weeks’ paternity leave and pay. This leave must be taken within 52 weeks of their child’s placement for adoption or date of birth in surrogacy cases and can be taken in two separate one-week blocks. Both parents may also be entitled to shared parental leave.

Shared parental leave (SPL)

Shared parental leave provides eligible employees who are parents with flexibility to take leave in the first year after the birth of a child or the placement of a child with them. These employees may be entitled to statutory shared parental pay.

In birth cases:

  • M (the child’s mother) is entitled to be absent from work to take SPL to care for the child if both she and P (the child’s father, or the mother’s spouse, civil partner or partner) satisfy certain conditions.
  • Similarly, P is entitled to be absent from work to take SPL if P and M satisfy certain conditions.
  • Where the mother is an employee, she may curtail her statutory maternity leave so that she can take SPL, provided the other parent is (or has recently been) in paid work. If P is an employee with qualifying service they may also take SPL. The parents can decide how they allocate the leave entitlement between them.
  • Where M is not an employee but is entitled to statutory maternity pay (SMP) or maternity allowance (MA), she will not be entitled to SPL. However, P may be entitled to SPL if they are an employee with qualifying service, and M curtails her SMP or MA period early.

In adoption cases (including adoption from overseas):

  • A (the main adopter) is entitled to be absent from work to take SPL to care for the child if both A and AP (A’s spouse, civil partner or partner) satisfy certain conditions. Similarly, AP is entitled to be absent from work to take SPL if AP and A satisfy certain conditions.
  • Where A is an employee entitled to statutory adoption leave they may curtail it in order to take SPL, provided the other parent is (or has recently been) in paid work. If AP is an employee with qualifying service they may also take SPL.
  • Where A is not entitled to statutory adoption leave but is entitled to statutory adoption pay (SAP) they will not be entitled to SPL. AP may be entitled to SPL if they are an employee with qualifying service, and A curtails their SAP period early.

In surrogacy cases:

  • Where A and AP are the intended parents under a surrogacy arrangement they may be entitled to SPL if they satisfy certain conditions. They are referred to in the legislation as “parental order parents”.
  • In surrogacy cases, A is the parental order parent who has elected to be “Parent A” for adoption leave and pay purposes, and is therefore taking adoption leave and/or statutory adoption pay.
  • If A is entitled to statutory adoption leave they may curtail it in order to take SPL, provided their partner is (or has recently been) in paid work. If the other parent (AP) is an employee with qualifying service, they may also take SPL.
  • Where A is not entitled to statutory adoption leave but is entitled to statutory adoption pay (SAP), they will not be entitled to SPL, but their AP may be entitled to SPL if they are an employee with qualifying service, and A curtails their SAP period early.

Parents do not have to use the shared parental leave system. The default position on the birth of a child is that the mother has 52 weeks of maternity leave. The default position on the adoption (or birth via surrogate) of a child is that the primary adopter is entitled to 52 weeks of adoption leave.

Unless parents qualify for and opt into this scheme, the child’s father/ mother’s partner/ second adopter will have no entitlement beyond the two weeks’ paternity leave and pay. 

As during statutory maternity, paternity and adoption leave, an employee taking shared parental leave is entitled to benefit from the terms and conditions of employment which would have applied had they not been absent, except for the terms as to remuneration.

What should employees do to ensure their rights are being protected?

Employees would be best advised to ensure they understand their employment rights and entitlements, which, as we have explained, can be complex. Employers may be unaware of the recent legislative changes and how to approach family related leave with same-sex couples, or with alternative methods of starting a family, such as surrogacy or adoption.  

If as an employee, you feel as if your rights are not being protected, or you feel that you are being discriminated against by your employer for taking such leave, please do contact a member of our Employment team who would be delighted to assist.

What should employers do to create a more inclusive workplace for families?

As an employer, you should ensure your policies relating to family leave are up to date, gender neutral and LGBTQ+ inclusive. You should also ensure that you support all employees through the process of starting a family, including remaining alert as to the employee’s wishes relating to the disclosure of their sexual orientation or gender identity as this could amount to discrimination or harassment.

How Moore Barlow can help

Our Employment lawyers at Moore Barlow would be more than happy to assist in reviewing any policies or contracts to ensure they are compliant and inclusive. We are also able to assist in any related claim that an employee may bring.

If you would like any further information on the contents of this post, or if you have an employment issue related to or arising from its contents, our Employment Law Team would be happy to help.


Share