June 19, 2017

Shared parental pay: should it match enhanced maternity pay?

In this update, we look at the latest employment tribunal decision on whether paying enhanced maternity pay but not enhanced shared parental pay discriminates against men.

The case in question concerned a new father who wanted to take shared parental leave (SPL) to care for his baby because his wife had received medical advice to return to work so she could recover from postnatal depression.

Under the terms of Mr Ali's employment, new fathers were entitled to two weeks' paternity leave on full pay and shared parental pay at the statutory rate.  Mothers, on the other hand, could take 14 weeks' enhanced maternity pay followed by 25 weeks' statutory maternity pay, provided they had 26 weeks' service (although a woman on SPL would only receive the statutory rate).

After Mr Ali's baby was born, he took two weeks' paid paternity leave followed by annual leave. His wife had post-natal depression and had received medical advice that she should return to work to assist her recovery.  HR said he could take SPL but that shared parental pay was not enhanced to match the enhanced maternity pay offered to mothers taking maternity leave.

Mr Ali didn't take the leave but raised a grievance that given his circumstances, he should be entitled to fully paid leave in the same way his female colleagues were when they were on maternity leave. His grievance was unsuccessful, and Mr Ali subsequently brought a sex discrimination claim.

Mr Ali accepted that the special treatment of female employees in the form of two weeks' compulsory maternity leave for mothers to recover from the birth was justified (and in fact Mr Ali wasn't treated less favourably in that two week period as he received full pay while on paternity leave). However, Mr Ali's complaint was that in the following 12 weeks he wanted to take SPL to care for his child but didn't because he wouldn't be on full pay. He argued that, after the two weeks' compulsory maternity leave, either parent could care for the baby, depending on the parents' particular circumstances - and made the point that in this day and age, a man caring for his baby should get the same pay as a woman performing that role.

The tribunal agreed and concluded he had been discriminated against because he was a man. It added that it didn't matter that Mr Ali hadn't actually applied for SPL but that this would be taken into account in assessing the level of compensation he would be awarded.

The tribunal noted there was no evidence that only providing enhanced pay for employees on maternity leave was justified, as the company did not have problems recruiting and retaining female employees.

Implications

When SPL was introduced, there was much debate about whether employers should enhance pay during any periods of SPL in the same way as any period of maternity leave.  In response to concerns that this may lead to employers considering removing enhanced maternity pay, in its guidance the government stated that providing enhanced maternity pay but not enhanced shared parental pay wouldn't amount to discrimination.

This has always been open to criticism though.  It also creates practical difficulties.  A woman may be deterred from moving across to SPL - to enable her partner to take some additional leave - if that means she will no longer be entitled to enhanced pay.  Providing for enhanced pay for women during SPL is therefore attractive, but if it isn't also provided for men on SPL, that can create discrimination problems (as was shown in the Network Rail case  last year.

So what happens when you only provide enhanced pay during maternity leave, and not during SPL?  This is what the Government said would not be discriminatory.  And an Employment Tribunal decision last year (in relation to the Police) said this was fine but this latest case disagreed.  Mr Ali was able to show he was directly discriminated against on the grounds of his sex by comparing himself to a woman on maternity leave – and yet in the Police case, the tribunal concluded that there was no valid comparison between a man on SPL and a woman on maternity leave, and that the correct comparator was a woman on SPL.

This clearly leaves uncertainty.  That said, it seems likely that the decision in Mr Ali's case is an indication of how tribunals will respond to a sex discrimination claim by a father who, like Mr Ali, intends to take on the role of primary carer during the 12 week period after compulsory maternity leave.  Perhaps a tribunal would take a different view in the case of a father who chooses to take SPL concurrently with the mother, and not as the primary carer?

Ultimately though this case is a reminder that, with the number of new mothers and fathers seeking to enjoy SPL rights increasing (although it remains at a low level), employers should consider and review what enhanced pay provision they provide, and whether or not there is differential treatment depending on the exact type of leave taken, and under what circumstances.

Ali v Capita Customer Management Ltd ET/1800990/16