Hello and welcome back to your weekly case law update. Last week we looked at the validity of settlement of agreements and we also did a feature on discrimination during recruitment following the Matching Models controversy. This week we will be looking at shared parental leave.
Today’s case is only an ET judgement so is therefore not binding on future decisions, however, it is the first ET case on the topic and may illuminate or be indicative of how future cases are dealt with. We also have an update on the holiday pay case of British Gas v Lock for you from earlier in the week.
Introduced in April 2015, Shared Parental Leave (SPL) allows mothers to share their maternity leave with their partners. This applies to couples who are adopting, same-sex couples, co-habiting couples, and couples bringing up a child together even if the baby is from a previous relationship.
Take up of this leave has been low and we believe one of those reasons was that many employers pay fathers taking SPL statutory parental pay in comparison to many mothers receiving enhanced maternity pay.
Which brings us to today’s question:
Is it discriminatory to pay a male parent taking shared parental leave less than a female parent taking maternity leave?
Mr Snell, the Claimant, was employed by Network Rail, the Respondent. His wife also worked for the Respondent and upon the birth of their baby they opted to take shared parental leave with the Claimant taking 12 weeks SPL and his wife 27 weeks.
However, upon completing the application he was informed that his wife would receive full pay for the duration of her SPL whilst the Claimant would only receive statutory parental pay of £139.58 a week. The Claimant raised a grievance on the grounds that his lower payment discriminated against him because of his sex. The Respondent rejected the grievance.
After his grievance appeal was unsuccessful the Claimant brought an indirect sex discrimination claim before the Employment Tribunal. The ET agreed that paying men less than women when they took shared parental leave was discriminatory and awarded the Claimant over £28,000.
The Respondent has since changed its policy to ensure that women as well as men receive the statutory £139.58 a week instead of enhanced maternity pay, hardly a step forward but fair and non discriminatory nonetheless.
The takeaway points:
Despite this only being an ET decision it would appear that the Tribunal will not look favourably on employers paying male parents less than female comparators during shared parental leave. However, until a case on this subject reaches the EAT or Court of Appeal there is no binding precedent on the issue.
Bearing that in mind it is worth noting that the Claimant in this case was awarded nearly £30k despite still being in work. This is a high sum for the ET to award and as discrimination awards are not capped it is worth bearing that in mind for any employer discouraging men from taking shared parental leave.