Maternity and paternity rights at work for same-sex couples

Pride celebrations are taking place across the UK during June and July, marking 50 years since the Stonewall Riots took place in New York on 28 June 1969. These riots served as a momentous catalyst for the gay rights movement globally. The Lesbian, Gay, Bisexual and Transgender (LGBT+) community joined forces with those supportive of the movement in the cisgender community to combat unfair and discriminatory laws, which prevented the queer community from socialising and expressing themselves without worry or fear of reprimand.

Amongst the areas of change stemming from years of activism in this area are the maternity and paternity rights of same-sex couples. Choosing to start your own family should be a time of excitement as you embark on this new chapter together. To help make this time of your life as smooth as it can be (we can’t promise we’ll help with the night-time feeds or nappy changes!), we outline what your rights are.

The first point to note is that 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 cisgender parents. It can still be confusing to decipher what all of your options and rights are, though, so let’s go through these below.

Employers can read our maternity and paternity guide here

Maternity leave and pay

Time off and eligibility

If you’re 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 expected week of childbirth, unless the child is born early. Your leave can either start the day you agreed with your employer, the day after the baby is due if the baby is born early, or up to four weeks before the week the baby is due if you’re off work for a pregnancy-related illness during that time. You will also be able to take maternity leave if the baby is stillborn from 24 weeks of pregnancy or dies after being born. During your pregnancy, you will also be entitled to ‘reasonable’ paid time off during work hours to attend ante-natal appointments, which includes travel time.

Rate of pay

The rules on pay during this period can be complex. Generally, a new mother who has been working for the same employer for 26 weeks up to and including the 15th week before the expected week of childbirth is entitled to Statutory Maternity Pay for 39 weeks of maternity leave. The rate of pay you may be entitled to is calculated at 90% of your average weekly gross earnings for the first six weeks, and then £148.68 per week or 90% of your average weekly gross earnings (whichever is lower) for the remaining 33 weeks.

It is worth checking your employment contract and staff handbook as your employer may actually pay you more than the statutory minimum. 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. If you decide not to take all of your maternity leave, then you can exchange part of that leave for Shared Parental Leave (more on this below).

Paternity leave and pay

Time off and eligibility

Paternity leave allows the other expectant parent in the relationship to take time off from work after the birth of your child. This leave may be available to you, regardless of your gender, if you’re in an established relationship with the mother of the child, you’re adopting or you’re having a baby through surrogacy.

If you’re a permanent employee, you have the right to unpaid time off work for two ante-natal appointments (but this time is capped at 6.5 hours per appointment). This is a right afforded to you regardless of your length of service with your employer. If you’re an agency worker, however, you’ll need to have been employed for 12 weeks before you can qualify for unpaid leave for ante-natal appointments.

When your baby does arrive, you have the option of taking either one week or two continuous weeks’ leave as part of Ordinary Paternity Leave. A week is the same amount of days you normally work in a week (for example, a week will be two days if you normally work two days in the week). Ordinary Paternity Leave must end within 56 days of the birth (or due date, if the baby arrives early). Unlike your right to attend ante-natal appointments irrespective of your length of service, your employer is only obliged to allow you paternity leave if you’ve been employed with them for a continuous 26 weeks up to any day in the 15th week before 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 your child.

Rate of pay

You are also entitled, subject to your level of earnings, to receive Ordinary Statutory Paternity Pay during this period. This rate is calculated at £148.68 per week or 90% 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.

Adoption leave and pay

Time off and eligibility

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 to having a child to care for 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. If you’re having a child through a surrogacy arrangement, you can start adoption leave the day of the birth or the day after. If you’re entitled to adoption leave, then you will also be eligible for paid leave for up to five adoption appointments after you’ve been matched with a child.

Rate of pay

The statutory rate of pay for adoption leave is 90% of your gross weekly earnings for the first six weeks and then £148.68 per week or 90% 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).

Shared parental leave and pay

Time off and eligibility

Birth or adoptive parents may be eligible for up to 50 weeks of Shared Parental Leave and you can also share up to 37 weeks of pay between you. You have the option to use this leave in one go, or you can opt to take up to three blocks of leave in order to stagger when you’re both at work or at home with your child; so long as this is used within the first year after your child is born or placed with your family. Birth and adoptive parents need to meet different eligibility criteria.

Rate of pay

If you’re the partner of the birth mother and want to use Shared Parental Leave, then you must have had the same employer for at least 26 weeks by the end of the 15th week of the due date, earn at least £118 a week on average and you must stay with the same employer for the period of your leave. If your partner has already taken some maternity leave, then they can choose to share the remainder of their leave with you if they wish.

If you’re adoptive parents and want to use Shared Parental Leave, then you both must have had the same employer for at least 26 weeks by the end of the week you were matched with the child, earn at least £118 a week on average and you must stay with the same employer for the period of your leave. 

If you’re eligible for Shared Parental Leave, you have a right to the minimum Statutory Shared Parental Pay, which is paid at £148.68 per week or 90% of your average weekly earnings (whichever is lower). To apply for this leave and pay, you’ll need to give your employer at least eight weeks’ notice and comply with any other set requirements.  

Parental leave and pay

Time off and eligibility

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. You do not need a specific reason to take this leave, but some common examples might be to spend more time with your child, help them settle into new childcare or school arrangements, or to care for your child if they’re sick.

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 you work 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 your relationship with the child.

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 a QualitySolicitors employment law expert. You can get in touch by calling 0808 145 33 95.

Posted in: Employment law

Expert legal advice you can rely on,
get in touch today


Please let us know you are not a robot