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Parental equality – but not when it comes to pay

The right to additional paternity leave (APL) has now been with us for over 3 years. generic leave

It allows a parent who has sufficient service and complies with notice requirements to take a continuous period of between 2 and 26 weeks’ leave provided:

• the period of APL falls within the period starting 20 weeks after the child’s birth or placement and ending 12 months after the birth or placement; and

• the individual’s spouse, civil partner or partner has returned to work from their statutory maternity or adoption leave.

 

 

Superficially APL looks like a mechanism for splitting maternity leave between a child’s parents and although that in many ways is the practical effect this is not entirely the case.

Pregnant employees can start their maternity leave up to 11 weeks before the expected week of childbirth and remain on leave for a total of 52 weeks. Starting leave well before the birth does not alter the window for the other parent to take APL so between them parents can take total leave well in excess of 52 weeks.

A parent taking APL may be eligible for additional statutory paternity pay (ASPP) but this is only payable for the period that the mother would have received maternity allowance or statutory maternity pay (SMP) – in other words the overall limit for payment of SMP and ASPP is 39 weeks.

The position in relation to these statutory payments is clear. However what about when the employer provides enhanced maternity pay? This fell to be decided in the recent case of Shuter v Ford Motor Co Ltd. It appears that in this case both parents worked for Ford which has a very generous maternity policy whereby women receive full pay for the whole of their maternity leave but parents on APL are only paid the statutory amount. S who had taken 20 weeks APL brought a claim alleging sex discrimination.

The tribunal found that there was no direct discrimination. S sought to compare himself to a woman taking maternity leave. However the tribunal found the correct comparator would be a woman who was taking APL (for example the civil partner of a woman who had taken maternity leave) and who would be treated in the same way as S as regards payments.

As part of his claim S argued that he could compare himself with a mother who remained on maternity leave at the point he took his APL. He tried to persuade the tribunal that at that point the purpose of maternity leave is childcare rather than protection of the mother. The tribunal was not persuaded that the legislation permitting APL was designed to have this wide ranging effect on maternity leave.

In any event the tribunal concluded that if there were differences in treatment these could be justified by the part of the Equality Act which allows more favourable treatment of women related to health and safety following pregnancy.

S’s claim of indirect discrimination was also rejected on the basis that although discriminatory this was objectively justified as a proportionate means of achieving a legitimate aim; namely the recruitment and retention of women.

A resounding defeat for S, but is this the end of the matter? Probably yes for S but at the end of this year shared parental leave (SPL) is being introduced and will apply in relation to births or adoption placement on or after 5 April 2015. SPL will not replace maternity leave but under the new provisions a mother or primary adopter can opt to end their maternity or adoption leave and share the balance of their leave with their spouse/partner as SPL. The regulations are very complex but it is difficult to see if maternity leave has ended that both parents should not be treated equally in relation to SPL payments. Watch out for further information on SPL later in the year.

Other blogs you may be interested in:

Shared parental leave – a move towards equality?

Surrogacy – some births are more equal than others

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further