Father wins Shared Parental Leave claim
The Employment Tribunal has held that a male employee was entitled to the same amount of pay as a woman on maternity leave when exercising his right to shared parental leave (SPL). (Ali v Capita Customer Management Ltd)
When the SPL legislation came into effect in 2013, the case law was clear that paying a man on SPL less than a woman on maternity leave was not discriminatory. The case of Shuter v Ford Motor Company established that the correct comparator was a woman applying for SPL in an adoption case, who would also not be entitled to enhanced pay.
The instant case is however the second case to overturn this assumption. In October 2016, Network Rail conceded in the case of Snell v Network Rail that its blanket practice of paying full pay to a woman on maternity leave but only statutory pay to her partner on SPL (who also worked at Network Rail), constituted indirect discrimination.
Mr Ali and his wife had a baby and his wife was advised that returning to work would help her combat post natal depression. They decided that, after the initial two week compulsory maternity leave period, his wife would return to work and he would act as the primary carer.
Under his employer’s policy, the first two weeks of ordinary paternity leave were paid at full pay but any subsequent shared parental pay was statutory only. In comparison, a woman on maternity leave received enhanced pay for the first fourteen weeks of her leave.
Mr Ali brought a complaint that not treating him the same as a woman on maternity leave deterred males from taking SPL and constituted direct sex discrimination.
The employment tribunal agreed. It held that Mr Ali could compare himself to a female employee on maternity leave because the period he was considering was not the initial two weeks compulsory maternity leave (which is designed to allow the mother time to bond with the baby) but the remaining twelve week period after that.
The Tribunal recognised that the purpose of the SPL regime is to give parents greater choice to decide who should be the primary carer. In this day and age, a policy which automatically assumes that the woman is best placed to play this role is not acceptable.
The Tribunal went on to say that, in this particular case, the medical advice was that the father was best placed to carry out the primary caring role given his wife’s post natal depression and the fact that he had already bonded with the baby.
Given that this judgment is first instance, it may be tempting to “sit tight” and instead of revising your written policies, deal with any requests for shared parental pay on a case by case basis. This could however lead to indirect discrimination claims. In any event this case most likely represents a significant change of direction, in the way tribunals will treat how men and women requesting family leave should be paid going forwards.
It would be sensible for employers who pay enhanced maternity pay but do not pay enhanced shared parental pay to now consider revising this practice; to either make an enhanced payment to both parties or indeed, to even remove the enhanced element altogether.
If you have any questions about this article, please contact Jayne Flint or another member of the employment team.