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Demystifying family leave entitlements for same-sex couples

Hollie Ryan

This article sets out to demystify leave entitlements for same-sex couples so that employers are in the best position to support LGBT (lesbian, gay, bisexual and transgender) parents or prospective parents. Contributor Hollie Ryan, Associate at Stevens & Bolton LLP

There are no specific rights which apply to same-sex couples, although employers must always be careful not to treat individuals differently as a result of their sexual orientation.

Same-sex couples may use alternative methods to start a family, e.g. surrogacy, adoption or even in vitro fertilisation (IVF). Employment rights relating to these are:

Employees using a surrogate have the right to take unpaid leave to attend two antenatal appointments with the birth mother. Following the birth, one of the parents (the primary adopter) will be entitled to take adoption leave and, subject to satisfying certain eligibility criteria, receive adoption pay, and the other parent may take paternity leave and receive paternity pay. The couple must elect which of them will take adoption leave. Alternatively, the parents may prefer to take shared parental leave (see below).

Employees do not have a statutory right to take time off for fertility treatment. However, employers should view time off for IVF sympathetically and in a similar way to antenatal appointments. There might be scope for the employee to take annual leave or to agree temporary flexible working arrangements or a combination of leave (whether paid or unpaid) during such treatment. Whichever option is preferred, employees should be treated consistently to avoid any allegations of unfair treatment.

If the employee is signed off as unfit for work due to the effects of the fertility treatment, the employer should treat the absence as any other sickness absence, in accordance with its usual policies and procedures. Once the fertilised egg has been implanted, the woman will be protected. If implantation is successful, the woman will be protected against discrimination on the grounds of her pregnancy. In the event that the implantation fails, the woman is entitled to a further two weeks of protection.

Maternity Leave
The law affords birth mothers special protection and this protection applies regardless of whether the mother is in a heterosexual or homosexual relationship. These rights include 52 weeks of maternity leave, some of which may be paid depending on the mother satisfying certain qualifying criteria, and paid time off for antenatal appointments. The mother’s employment will also be protected while she is pregnant and during maternity leave.

Adoption Leave
Adoption leave will apply whether a surrogate is used or the child is being adopted through an adoption agency, i.e. it is not a private adoption. This entitles one parent, the nominated “adopter”, to take 52 weeks’ leave, some of which may be paid subject to satisfying certain qualifying criteria. In order for leave to be taken, the employer will need to be provided with a parental order or a matching certificate from an approved adoption agency. While one parent will be the primary carer, the other parent will also have the following, more limited, rights provided that they have 26 weeks’ service:

Paternity Leave
Paternity leave allows two weeks’ paid leave to be taken at any point within 56 days of the birth or the child being placed for adoption. This is not just for the biological father, but also the spouse, civil partner or partner, provided they take the main responsibility for the upbringing of the child. Parents entitled to paternity leave will also be entitled to take unpaid time off to attend two antenatal appointments with the mother.

Shared Parental Leave
If the primary carer chooses not to take the full 52 weeks’ maternity or adoption leave then both parents can share the remaining leave. This can be taken in a series of blocks and both parents can take this concurrently, although employers will need to be given at least 8 weeks’ notice for each period.

Supporting same-sex couples
Starting a family is typically an exciting and stressful time. The above outlines the statutory entitlements that new parents have, but employers have discretion to be more generous if they wish. Employers often offer enhanced maternity pay, and in such circumstances, enhanced adoption pay should also be offered. There is also scope for employers to offer enhanced paternity and/or shared parental pay.

Employers could also allow additional leave for antenatal visits where appropriate. This does not necessarily need to be paid. Ultimately, the more an employer can do to support new parents, the more motivated and engaged an employee is likely to be.

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