maternity paternity same sex parents

Employment law

Maternity and paternity rights for same-sex parents

We outline what you’re entitled to, whether this differs depending on your circumstances, and what action you can take if your rights aren’t being met.

07 February 2022

As same sex parents, it’s important to be aware of your maternity and paternity rights. One of the most important things to note, is that both sexual orientation and gender reassignment are protected characteristics as defined by the Equality Act 2010. This means that it’s illegal for your employer to discriminate against you on these grounds.

As a result, you’re entitled to the same maternity rights, paternity leave rights and adoption leave as heterosexual and cisgender parents, although your rights may differ depending on your individual circumstances.

What rights do you have when giving birth to a child?

Time off work – If you’re giving birth to a child, you have maternity rights at work and therefore maternity leave entitlement applies. This is a maximum of 52 weeks’ maternity leave and can start up to 11 weeks prior to the expected week of birth.

Generally, you’ll agree a date that your maternity leave will start with your employer. However, if your baby is born early, your maternity leave will automatically start on the day you give birth, or you may start your maternity leave up to four weeks early if you’re suffering from a pregnancy-related illness or complication.

Reasonable adjustments – Any employee (providing you’ve worked for your employer for 26 continuous weeks and haven’t made a flexible working request application during the previous 12 months) has the right to request flexible working arrangements, such as altered working hours on a longer-term basis, or the option to work from home. It’s important to note, however, that although your employer has an obligation to ensure that they consider your request fairly and properly, they’re not obligated to agree to it.

You will, however, be entitled to ‘reasonable’ paid time off to attend antenatal appointments.

What’s defined as reasonable can depend on a number of factors, so we recommend talking to one of our expert employment solicitors if you believe you’ve been unfairly denied a reasonable adjustment or your pregnancy rights at work.

Pay and bonus – You’re entitled to statutory maternity pay for 39 weeks of maternity leave, providing you have continuous employment of at least 26 weeks by the 15th week before you’re expected to give birth.

The rate of pay you’re entitled to is calculated at 90% of your average weekly gross earnings for the first six weeks, followed by £172.48 per week (or 90% of your average weekly gross earnings if this is lower) for the remaining 33 weeks.

You’re entitled to any bonus concerning:

  • The time before maternity leave
  • The two weeks of compulsory maternity leave
  • The period following maternity leave

A bonus payment must be made at the time it would normally have been paid, regardless of whether or not you’re on maternity leave at that time.

However, employers may reduce a bonus to reflect the period that a woman was absent on maternity leave. Particularly if your discretionary bonus is based on attendance.

There are a number of considerations to be made before it can be concluded whether something is considered maternity discrimination - so again, it’s best to consult an employment lawyer in the first instance.

Redundancy and dismissal – Redundancy could be a fair reason for dismissal; however, if your pregnancy and redundancy can be linked without good reason, and if it can’t be evidenced that your role is no longer required, this could amount to unfair dismissal.

If you’re made redundant and dismissed by reason of pregnancy, childbirth or maternity leave, or any other pregnancy-related reason, then you don’t need two years’ service to bring an unfair dismissal claim.

Your employer must follow a standardised redundancy procedure (regardless of whether this is before, during or after your maternity leave) and mustn’t rely on your pregnancy as a reason for dismissal. They must also do all they can to find suitable alternative employment for you.

Do your rights differ if you’re not carrying the child?

Redundancy and dismissal - Similar to the above, redundancy could be a fair reason for dismissal, but your employer would need to evidence that your role is no longer required. If a valid reason for redundancy couldn’t be shown, then it may be considered unfair dismissal.

Time off work - As an adopting parent, you’re entitled to unpaid time off to attend two antenatal appointments with the person giving birth.

If you’re an adopting couple, only one of you can accompany the person giving birth to the antenatal appointments, so you’ll need to agree who this will be. Each appointment can be up to six and a half hours’ long.

If you intend to take surrogacy or adoption leave, you must inform your employer of this no later than the 15th week before your baby is due. You’ll need to tell them the expected week of childbirth and agree when your adoption or surrogacy leave will begin.

What happens when the baby is born?

If you’re having a baby, then shared parental leave (or shared adoption leave/shared surrogacy leave) could be an option for you once the baby is born.

Both shared parental leave and shared adoption/surrogacy leave can be shared with a civil partner, spouse, or partner (partner meaning someone, of any sex, who you’re in an ‘enduring relationship’ with). It enables you and your partner to decide how to share time off work following the birth of a child, and applies to all children born after 5 April 2015.

Shared parental leave

If the mother returns to work before the end of their period of statutory maternity leave, the couple will be able to share the remaining leave between them. It can also be taken in three separate blocks, allowing the mother to return to work for a period, and then return to maternity leave for a further period.

Similarly, maternity pay can be shared if the mother returns to work before their entitlement to pay has ended.

Shared adoption/surrogacy leave

Couples who apply for a parental order, in regard to a child born via surrogate, are entitled to surrogacy leave. To apply for a parental order, at least one of the partners must be biologically related to the baby, and the application must be made by two people (they must either be married, in a civil partnership, or in an ‘enduring relationship’). Couples adopting a child are also entitled to shared adoption leave.

One of the two people will be named as the ‘primary adopter’. They’re entitled to 52 weeks’ statutory adoption leave. If the primary adopter returns to work before the end of their adoption leave entitlement, the rest of the leave can be shared between the two adopting parents.

For the first six weeks of adoption leave, the primary adopter will be entitled to 90% of their average weekly gross earnings, followed by £172.48 per week (or 90% of their average weekly gross earnings if this is lower) for the remaining 33 weeks.

If the person who’s elected to take statutory adoption pay returns to work before their adoption pay entitlement ends, the remaining period of adoption pay can be shared between the two adopting parents.

What can you do if your rights aren’t being met?

Everyone’s entitled to the same level of care and support when taking on the same type of parental role. If you feel your employer is treating you unfairly, then it’s important to speak to an employment lawyer in the first instance to find out if you have a case and what your next steps are.

You only have a set amount of time in which to bring a discrimination case, so it’s important not to delay so that you can get the justice you deserve.

We’re one of the UK’s largest consumer law firms and our team are experts in all elements of employment law, so you can trust that you’re in safe hands.

If you’d like to speak with one of the team, simply get in touch on 0330 041 5869, or, if you prefer, you can contact us via our online form or web chat.

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