This week (2-8 March 2020) marks LGBT Adoption and Fostering Week.
As employment lawyers we often talk about family friendly leave or pay, or family friendly rights. Generally that includes maternity leave, paternity leave, adoption leave, shared parental leave, parental leave and time off for dependants. The law sets out certain minimums (including in relation to time off and pay) but employers can and often do provide more generous entitlements and so you should familiarise yourself with the relevant policies in your workplace. All potentially apply to LGBT+ families and so it is worth dealing with each in turn.
Birth mothers can take up to 52 weeks maternity leave from work. All such employees must take a minimum of two weeks' maternity leave starting with the day on which childbirth occurs (four weeks for factory workers). An employer will be guilty of a criminal offence if it allows an employee to work during this compulsory maternity leave.
Subject to satisfying certain criteria (including having 26 weeks’ continuous employment ending with the 15th week before the expected week of birth), an employee on maternity leave may be eligible to receive statutory maternity pay during the first 39 weeks of maternity leave, with a further 13 weeks’ leave being unpaid. The mother is also entitled to paid time off to attend antenatal appointments.
Eligible employees are entitled to take either one whole week or two consecutive weeks' paternity leave within 56 days of a child's birth or placement for adoption. This includes the birth of a child to a surrogate where the employee (and their partner) expects to obtain a parental order.
In order to qualify for paternity leave, the employee must be the father of the child or be married to or civil partner of the mother or adopter of the child, or be their partner. In addition, the employee must have or expect to have responsibility for the upbringing of the child. The employee also requires to give notice to the employer and must have 26 weeks’ continuous employment ending with the 15th week before the expected week of birth.
Adoption may be undertaken by single people, married couples, civil partners, and unmarried couples (all irrespective of sexual orientation). Whether the child is born via surrogacy or is placed by an adoption agency, adoptive parents have the same rights as birth parents. Couples must elect which of them is to be "the adopter" (or "Parent A" in surrogacy cases) for the purposes of taking adoption leave. Their partner or spouse may then be entitled to paternity leave and pay, and the couple may decide to take shared parental leave.
No more than seven days after the date on which an employee has been told by the adoption agency that they have been matched with the child or, where that is not reasonably practicable, as soon as reasonably practicable, the employee must give their employer notice of intention to take adoption leave (and the employer may ask for certain evidence). There is also provision for varying the start date of adoption leave, upon giving sufficient notice to the employer.
The statutory framework that applies when a child is matched and placed for adoption domestically applies, albeit with modifications, to the adoption of a child from overseas.
In surrogacy situations, an employee is entitled to adoption leave if they are one of the child’s parental order parents; they have elected to be “Parent A”; and they satisfy the notice and evidentiary requirements (including notifying the employer of an intention to take adoption leave and providing the expected week of the child’s birth, in or before the 15th week before that date). The employee’s period of ordinary maternity leave will begin on the date on which the child is born.
Shared Parental Leave
Shared parental leave effectively allows parents to share the statutory maternity and adoption leave and pay that is available.
It is up to the employees to propose the pattern of leave that they wish to take, and to discuss this with their individual employers. Parents are able to take shared parental leave at the same time as each other or separately. The entitlement to 52 weeks of maternity or adoption leave (39 weeks paid) will remain the default position for all employed birth mothers or primary adopters, as will the two-week period of compulsory maternity leave. However, qualifying parents are able to share between them up to 50 weeks of leave and 37 weeks of pay. Both parents will need to give their respective employers eight weeks' notice of the dates on which they wish to begin this leave and claim shared parental pay.
What about pay?
In April 2020 the statutory rates payable to eligible employees for maternity pay, paternity pay, adoption pay and shared parental pay will increase from £148.68 to £151.20 per week (or 90% of the employee's average weekly earnings if this figure is less than the statutory rate). Of course, some employers may provide more generous rates of pay and this should be clearly set out in any relevant workplace policies.
Parental leave is available to birth and adoptive parents and also to anyone who has, or expects to have, legal parental responsibility for a child. It is a form of statutory unpaid leave (of up to 18 weeks per child until their 18th birthday) available to some working parents in addition to statutory maternity, paternity, adoption and shared parental leave. To be eligible the employee must be employed for not less than one year at the time the leave is to be taken.
This leave is typically used to spend more time as a family, find new schools or settle into new childcare arrangements. In addition, employees (irrespective of length of service) have the right to take a "reasonable" amount of unpaid time off work to take "necessary" action to deal with particular situations affecting their dependants. This often referred to as ‘time off for dependants’ and is typically used where there is less time to prepare or plan for a period of leave.
In addition, all employees with 26 weeks of service are also entitled to request a flexible working arrangement. Employers must deal with such requests reasonably, and ACAS has a Code of Practice and useful guidance in relation to how to do so.
Protection from Dismissal or Detriment
Employees are generally protected from dismissal or detrimental treatment as a result of seeking to take or taking any of the above types of leave. Dismissal in such circumstances can be automatically unfair and/or may discrimination or harassment in breach of the Equality Act 2010. Employers should take specialist advice. A decision to dismiss without taking advice can be costly (financially and reputationally).
What about foster care?
Foster carers may be entitled to time off for dependants and will be entitled to make a flexible working request to their employer, but will generally not be entitled to any of the other types of leave discussed above (unless and until they become or apply to become adoptive parents).
Planning and transparency is key to ensuring a good working relationship before, during and after a period of family related leave from work. However you decide to start your family, it is important that you take the time to understand your employment position, and what leave and pay you will be entitled to. Employers may be less well versed in dealing with and responding to requests for time off from same-sex parents (and the alternative methods of starting a family such as surrogacy and adoption) but that’s no excuse for badly managing such requests. Employers should ensure that they have up to date and fit for purpose policies which deal with each of the different types of family leave, that the policies are LGBT+ inclusive and gender neutral, and that staff are supported as much as possible when they are going through any process to start a family. Remember also that employers must consider the employee’s wishes in relation to the disclosure of their sexual orientation or gender identity, and any ‘outing’ of that (including when dealing with requests for family leave) may amount to LGBT+ discrimination or harassment.
Starting a family can be one of the most exciting times of a person’s life. You should take specialist advice to ensure that that is not affected by disputes about pay or leave from work.
If you have any questions in relation to your 'family friendly' employment rights, please do not hesitate to contact a member of our specialist Employment team.