Maternity and paternity rights for same-sex couples
People within the LGBTQI community have had the right to adopt since 2005 whether they choose to become a parent on their own or as part of a same-sex relationship. When it comes to parenting, the adoption rights for gay couples are the exact same as they are for straight couples. This covers maternity and paternity rights too.
Under employment law, it’s illegal to be discriminated against by your employer for your sexual orientation. Therefore, as a gay parent, you’re entitled to exactly the same leave as any other adoptive parent. It can still be confusing to decipher what all of your options and rights are, though.
Broken down to basics, adoption leave is a mirror of maternity leave. It allows one person in the relationship to take time off work to adapt and enjoy this time of becoming a new parent. The most leave an employer must give is 52 weeks of Statutory Adoption Leave, which is broken down into 26 weeks of Ordinary Adoption Leave and 26 weeks of Additional Adoption Leave. This leave can start up to 14 days before the date the child starts living with you if you’re adopting a child from the UK. For overseas adoptions, you may start your leave when the child first arrives in the UK or within 28 days of this date.
The statutory rate of pay for adoption leave is 90 per cent of your gross weekly earnings for the first six weeks and then £145.18 per week or 90 per cent of your gross weekly earnings (whichever is lower) for the next 33 weeks. You should check with your employer if they have any other policies in place that may entitle you to more leave time or pay. As only one person in the relationship may take adoption leave, the other person may choose to take paternity leave (regardless of their gender).
Paternity leave allows the other person in the relationship to take time off from work after the arrival of your adopted child. If your partner is giving birth to your child, you have limited rights to time off to attend antenatal appointments. Ordinary Paternity Leave is a period of either one week or two continuous weeks’ leave. This must be taken between the date on which the child is born and 56 days after that date. Your employer is only obliged to allow paternity leave if you have been employed with them for a continuous 26 weeks before the fifteenth week that the baby is due.
If your partner takes adoption leave and returns to work before the end of their leave period, you have a right to use their remaining leave. This right affords you up to 26 weeks of Additional Paternity Leave. This leave must be taken between 20 weeks and one year of the child moving in with you and must be taken in multiples of at least one or two weeks at a time. Of course, you’ll have to give your employer ample notice (eight weeks) if you want to do this. This option gives you both a bit of flexibility in terms of sharing the responsibility of caring for the child.
You are entitled, subject to your level of earnings, to receive Ordinary Statutory Paternity Pay during this period. This rate is calculated at £145.18 per week or 90 per cent of your average weekly earnings (whichever is lower). Your pay will be made to you at the same frequency your usual pay is made. It is worth checking your employment contract and staff handbook as your employer may actually pay you more than the statutory minimum.
There’s also the option of taking parental leave. This is a slightly different type of leave that entitles you to 18 weeks of unpaid leave for each child or adopted child up to their 18th birthday. Parental leave cannot be taken as individual days and must be taken as whole weeks (with a ‘week’ calculated at the normal number of days a person works over a seven day period). You must have parental responsibility to take this type of leave and have been working for your employer for at least one year to be entitled. Your different type of working arrangements will affect your entitlement to parental leave. Your employer is entitled to ask for evidence of the child’s birth and a written declaration as to the relationship with the person requesting the leave.
If you are giving birth to a child, you will be entitled to maternity leave. New mothers are entitled to take a maximum of 52 weeks’ maternity leave no sooner than 11 weeks before the due date of the child, unless the child is born early. The rules on pay during this period can be complex, but usually a new mother who has been working for the same employer for 40 weeks before the birth of her baby is entitled to Statutory Maternity Pay for 39 weeks of maternity leave. The rate of pay you are entitled to is calculated at 90 per cent of your average weekly gross earnings for the first six weeks, and then £145.18 or 90 percent of your average weekly gross earnings (whichever is lower) for the remaining 33 weeks. Only one person in the relationship may take maternity leave, while your partner has the option to take paternity leave (regardless of their gender) or parental leave.
Your rights protected
Regardless of the type of leave you take, your employment rights will be protected. This means that all of the agreements listed on your contract (including holiday entitlements and pay rises) will continue through your period of leave. When you return to work, you’ll be entitled to resume your same role, unless this isn’t reasonably practical. It is also possible to request flexible working arrangements when you return, recognising that balancing work and looking after a new baby may be tough. You should request this in writing in good time before your return date. The law requires that your employer seriously considers your request, although they can refuse if there are genuine business reasons for not changing your working arrangements.
There are a number of employment leave options to consider, and it’s important for same-sex couples to realise their rights are protected however they choose to become a new parent. If in doubt, individuals or couples are encouraged to seek legal advice from an expert.
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