When LGBT workers look to start a family, there are numerous rights and entitlements employers must be aware of. Hollie Ryan and Camille Arnold of Stevens & Bolton look at the options open to them.
With a recent report from YouGov and Stonewall suggesting that LGBT employees fear discrimination to the extent that they would not consider coming out to colleagues, employers need to turn their attention to ways in which they can better support them. One area of support that often gets overlooked is family friendly leave and entitlements.
Same-sex couples do not have specific rights which apply exclusively to them; however, they are more likely than heterosexual couples to use alternative methods of starting a family and might to surrogacy, adoption or IVF. Here we set out some of the rights and entitlements that may be triggered when same-sex couples look to start a family:
Employees using a surrogate have the right to take unpaid leave to attend two antenatal appointments with the birth mother. The intended parents will need to apply for a parental order or adopt the child. One of the parents (the primary adopter) will be entitled to take adoption leave and, subject to satisfying certain criteria, receive statutory adoption pay. 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.
Employees do not have a statutory right to take time off for fertility treatment. Employers are best advised to view time off for IVF sympathetically and in a similar way to antenatal appointments. There might be scope for temporary flexible working arrangements or a combination of leave (whether paid or unpaid). Alternatively, employees may be permitted to take annual leave whilst undergoing treatment. Whichever option is favoured, it is important that employees are 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 treatment, the employer should treat this in the same way as any other sickness absence.
From the point that the fertilised egg has been implanted, the employee will be protected as a pregnant woman.
Birth mothers are entitled to 52 weeks’ leave regardless of whether they are in a heterosexual or homosexual relationship. Subject to the mother satisfying certain criteria, she 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.
Non-birth parents now have identical statutory rights to mothers. Adoption leave will apply whether the child is born via a surrogate or the child is being adopted through an adoption agency. This entitles one parent, the nominated “adopter”, to take 52 weeks’ leave. In order for the leave to be taken, the employer will need to be provided with a parental order or a matching certificate from an approved adoption agency. The main adopter will also be able to take paid time off for up to five adoption appointments.
One parent will take the role of the mother/primary carer while the other parent will have the following, more limited, rights:
Paternity leave – They can take to two weeks’ paid leave to be taken at any point within 56 days of the birth of the child or the child being placed for adoption. Paternity leave is not just for the biological father – same-sex parents can take paternity leave provided that the other parent is the spouse, civil partner or partner of the mother/primary carer and they have the main responsibility for the upbringing of the child. They will also be entitled to take unpaid time off to attend two antenatal appointments with the mother/primary carer.
The benefits of offering enhanced shared parental pay cannot be ignored: it allows employees to return to work sooner if the other parent is able to share the leave and, more importantly, can lead to happier and more engaged employees.”
Shared parental leave – If the primary carer chooses not to take the full 52 weeks’ maternity or adoption leave, he or she can curtail their leave and, both parents can share the remaining leave between them. This may be taken in a series of blocks and both parents may take this concurrently, although employers will need to be given at least eight weeks’ notice for each period.
Supporting LGBT employees
Employers may already offer enhanced pay for maternity and adoption leave but further thought should be given to whether enhanced pay can be offered in respect of other family friendly leave with a view to supporting same-sex couples and other parents.
The current weekly statutory pay is £145.18 or 90% of the employee’s salary, whichever is lower. Statutory minimum pay is likely to be significantly less than the employee would usually earn and can place a huge financial burden on those trying to start a family. Employers may wish to offer enhanced pay beyond the statutory minimum entitlement.
A large number of employers enhance maternity and adoption leave but do not offer enhanced shared parental pay. There is a risk that a failure to offer enhanced shared parental pay in circumstances where maternity pay is enhanced may give rise to claims of discrimination, but we are awaiting further clarification from the courts in this respect. That aside, the benefits of offering enhanced shared parental pay cannot be ignored: it allows employees to return to work sooner if the other parent is able to share the leave and, more importantly, can lead to happier and more engaged employees.
If employers are not able to enhance pay, another option is to offer additional leave to those who are in the process of adopting or undergoing IVF. The leave does not need to be paid, but flexibility on the part of the employer is one way in which employers can support LGBT employees.
Consideration should also be given to whether alternative working arrangements can be put in place on a temporary basis, ensuring of course that this practice is applied consistently across the workforce. The more that employers can do to make LGBT employees feel supported, the more likely they are to be productive and engaged.