Modern families and their rights at work – how we can help

For many of us, balancing the responsibilities we have at home and at work can be demanding. For modern families this balancing act can create very real challenges, which are different for each member of a family as they navigate their way through parenthood.

We advise blended families, LGBTQ+ families, international families, co-parents, civil partnerships and adoptive parents. With our team of Family and Employment lawyers, our areas of expertise include flexible working, time off for IVF treatments, maternity leave, adoption and surrogacy rights in the work place and shared parental leave.

In this blog we set out some of the key rights available to modern families to help them navigate their rights and responsibilities at home and at work.

Flexible working
 

If you have had a change in your family structure or circumstances and it would help you and your family, you could make a flexible working request. Even if there has not been a recent change to your family, but you would like a greater degree of flexibility around when and where you work, you can make a flexible working request to your employer.

Employees can make this request at any point, as it is a right you receive from the first day of your employment. You could request:

• a change to the number of hours you work;
• when you start or finish your working day;
• the days of the week you work; or
• where you work.

It is possible for your employer to refuse an application for flexible working if the reason for the refusal is one of the permitted (or “prescribed”)business reasons for doing so. That being said your employer must deal with any request you make in a ‘reasonable manner’ and if they fail to do so, there may be steps you can take to protect your legal position.

We can help you make a flexible working request or to challenge a decision taken by your employer.

Time away from work for IVF apportionments or related sickness 

There is currently no specific legal right to time off for IVF appointments or any treatment related illnesses. If you need to take time off for appointments or experience sickness as a result of your treatment, your employer should treat these circumstances the same as any another other appointment or sickness.

That being said, there is a growing practice in the workplace for employers to have greater flexibility and more generous family-friendly policies in relation to fertility. An example of this is the Fertility Workplace Pledge which was launched in November 2023. The Pledge aims to provide a simple framework and voluntary set of commitments which support employees going through fertility treatment.

If you would like to take any time off for IVF treatment, and you feel comfortable enough to do so, you could talk to your employer and discuss options with them, including:

• making a flexible working request;
• taking some paid time off,
• taking unpaid time off; or
• taking some holiday.

If you do not feel comfortable discussing any treatment related sickness with your employer, then your employer should still treat any sickness absence in accordance with their standard policy and or procedure.  If you are unsure what your employer’s standard policy includes, you can look at your contract of employment or staff handbook.

Maternity leave & pay

If you are pregnant and are an employee, you can take up to fifty-two weeks of statutory maternity leave. You are entitled to choose how much of the fifty-two weeks you take but by law you must take the first two weeks off work after your baby is born.

Your employment rights are protected while you are on statutory maternity leave and this includes your right to pay rises, building up of holiday and returning to work.

The law sets out when and how you can claim your maternity leave and if you want to adjust the dates of your maternity leave.You are also protected against unfair treatment and dismissal if any such treatment is a result of your pregnancy and/or maternity leave. Redundancy protection which entitles you to be offered any suitable alternative vacancy whilst on maternity leave, has recently been extended to cover a period after your return from maternity leave.  

You also have the right to reasonable time off with full pay for antenatal appointments before you have your baby. This is a right for full or part time employees and is available to you from the first day of your employment if you are legally classed as an employee. Appointments can include scans, pregnancy health checks, relaxation classes and parent craft classes.

When you have your child, you may be eligible for Statutory Maternity Pay (SMP). You may also be entitled to enhanced pay, contractual maternity pay or a maternity allowance. You can speak to your employer about any enhanced or contractual maternity pay they may offer you.

Adoption and pay

You might be eligible for Statutory Adoption Leave and Statutory Adoption Pay if you are adopting a child and are an employee.

If you are in a couple, one of you may be eligible to receive adoption leave and pay, and the other may receive paternity leave and pay. You can choose between yourselves who takes adoption leave and who takes paternity leave. Statutory adoption leave is the same as maternity leave and lasts up to fifty- two weeks.

To receive adoption leave you must tell your employer if you are adopting and give them correct notice.  If your employers ask for it, you must also give them proof that you are adopting.

Your right to adoption pay is the same as maternity pay and it starts when you take adoption leave. It may be that your employer offers you enhanced adoption and pay. To check this, you can look at your contract of employment or speak to your employer.

During a period of adoption leave your employment rights are protected. This includes protection from detriment or dismissal relating to adoption leave.

Surrogacy

The core rights during a surrogacy are different for the surrogate mother and the people who are having a child through surrogacy.

If you are a surrogate mother and an employee, you have the same rights to maternity leave and pay as other pregnant employees. For example, this includes paid time off for antenatal care, protection from discrimination and maternity leave and pay.

If you are using a surrogate, and a single parent, you may be able to benefit from adoption leave and pay.

If you are using a surrogate and in a couple, one of you may be eligible to benefit from Statutory Adoption leave and Statutory Adoption Pay. The other person in your relationship may be able to take Statutory Paternity Leave or Shared Parental Leave and Pay (if they meet the relevant criteria).

To be eligible for adoption leave and pay you must apply to become the legal parent within six months of your child’s birth.

Shared paternal leave and pay

If you and your partner are having a baby, adopting your child or using a surrogate to have your child, you may be able to get Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP).

This means you can share up to fifty weeks of leave and up to thirty-seven weeks of pay between you.  If you would like to receive SPL and ShPP you and your partner need to:

• meet an eligibility criterion, which is different for birth parents, adoptive parents or parents using a surrogate;
• give the required notice(s) to your employers; and
• give up some of your maternity or adoption leave and pay.

If you receive SPL and ShPP you will need to share the pay and leave in the first year after your child is born or placed with your family.

In terms of how and when you can use SPL, the choice is yours to make but depending on the nature of your request, your employer may be able to propose an alternative arrangement or refuse it. If you want to, you can take it all at once, or in different blocks between periods of work.

The process of navigating your rights with your employer as a member of a modern family is not always straightforward but we are well-positioned to provide clear and practical advice to support you and your family. 

further information

If you have any questions regarding this blog, please contact Kirsty Churm or Isabella Beck in our Employment team.

 

about the authors

Kirsty is a Legal Director in the Employment Department. She advises both employers and senior employees on all aspects of employment law and employee relations issues, including contentious and non-contentious matters. 

Isabella is a trainee solicitor at Kingsley Napley and is currently in her third seat with the Family Team. Isabella joined the firm in September 2023 and completed her first seat in the Dispute Resolution Team where she assisted on a variety of commercial litigation matters as well as trust and estate disputes.