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Shared parental pay and discrimination

New laws on shared parental leave and pay were introduced in early 2015 meaning big changes for families and for businesses. In simple terms, the legislation gives mothers the right to transfer leave they’re due after the birth of their child, to their partner.

In the first case dealing with the issue of shared parental pay the Glasgow Employment Tribunal has awarded nearly £30,000 to a father who was discriminated against by his employer. The terms of the employer’s family friendly policy were deemed to be indirectly discriminatory when a father applying for leave was only entitled to statutory shared parental pay, whereas mothers received full pay during their shared parental leave. Whilst Tribunal decisions are not binding it is a useful indication of how this issue might be approached.

Background

Mr Snell was employed by Network Rail as a Signalling Principles Designer. His wife was also employed by Network Rail and they both planned to take shared parental leave; Mr Snell taking 12 weeks and his wife 27 weeks.

Mr Snell submitted his application for leave under Network Rail’s family friendly policy. Under this policy mothers were entitled to full pay for a period of 26 weeks, however fathers were only entitled to pay at the basic statutory rate; Network Rail confirmed this in writing and also that Mr Snell would be opted out of the employer’s pension scheme for the duration of his leave. Mr Snell raised a grievance stating:

“Under this policy, payments to mothers on shared parental leave will be at significantly different rates to fathers, ie. 26 weeks’ full pay and 13 weeks’ statutory compared with 39 weeks’ statutory for fathers… As a result of this, I believe I am being discriminated against because of my sex.”

Mr Snell also referred to the government guidance on shared parental leave and pay which states:

“It will be entirely at the discretion of employers whether they wish to offer occupational parental schemes for men and women taking shared parental leave. The way in which employers respond to these changes will therefore vary across different employers based on their individual business plans. There is no legal requirement for companies to create occupational parental leave schemes. However, a maternity scheme can only be offered to a woman on maternity leave. If an occupational scheme is offered to a mother on shared parental leave, it could constitute sex discrimination if such an occupational scheme were not offered to fathers/a mother’s partner.”

Network Rail rejected Mr Snell’s grievance stating it had “met the legal requirement”; Mr Snell subsequently lodged a claim at the Employment Tribunal claiming that the terms of Network Rail’s family friendly policy in relation to shared parental pay amounted to direct and indirect sex discrimination.

Prior to the Tribunal hearing Mr Snell withdrew his claim of direct discrimination and his employers agreed not to contest the claim of indirect discrimination. The Tribunal hearing therefore only dealt with remedy. Mr Snell was awarded £28,321.03. Network rail has reportedly also changed its family friendly policy such that shared parental leave is now only paid at the statutory rate for all employees.

Comment

While the government guidance says there is no legal requirement to level pay up and pay the same for shared parental leave as under an enhanced maternity policy, there has been a great deal of legal debate around the lawfulness of having different pay under different schemes and how this relates to the risk of discrimination claims. If enhanced (company) pay is paid to anyone on “maternity leave” (as most policies describe it) this may be a provision, criterion or practice for the purposes of the Equality Act with which a man cannot comply. A man is clearly put at a disadvantage as he does not receive the enhanced maternity pay. The question is whether this difference in treatment can be justified.

This case doesn’t help with the situation where an employer offers enhanced maternity pay but does not offer this for shared parental leave (and whether this could lead to a successful discrimination claim); Network Rail appear to have joined the two circumstances into one scheme and referred to all leave as shared parental leave and has then made distinctions between the pay that is applied, depending on whether the employee is the mother or father. Couched in these terms it is clearly harder to justify than if the two concepts of maternity leave and shared parental leave are considered separately. To this end we suggest you check your policy wording and take advice if necessary.

For more information on shared parental leave visit our hub

 

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