Shared Parental Leave (“SPL”) has been around since 2015 but uptake on it has been minimal. As a result, when employers are required to deal with an application for SPL there can be some confusion around entitlements to pay. A recent case has exposed the difficulties that employers may face dealing with a request for SPL, especially when there is an enhanced rate of pay for employees on maternity leave.
An employee presented a claim in the Employment Tribunal for direct and indirect sex discrimination because he was only entitled to two weeks paid leave following the birth of his child.
What is Shared Parental Leave?
SPL was introduced so that parents have the flexibility in deciding how to care for their child during the first year following birth, or placement for adoption. Previously, only the Mother was able to take Maternity Leave and the Father 2 weeks of Paternity Leave. Now, once the Mother has taken her 2 weeks compulsory Maternity Leave, both parents can use SPL to care for their child in a flexible way.
If an employee is eligible then either they or their partner can end their maternity or adoption leave early and then the father can take the remainder of the 52 weeks as SPL. The current statutory pay is for 39 weeks and is payable at £140.98 per week or 90% of the employee’s weekly earnings, whichever is lower. However, employers are entitled to introduce an enhanced rate of pay.
Mr Ali was told by his employer that he would only be entitled to full pay for two weeks of paternity leave, whilst women working at the company were entitled to 14 weeks full pay if they were to take maternity leave. The Company also had a SPL policy in place.
Unfortunately, following the birth of Mr Ali’s child, his wife was diagnosed with post-natal depression so he requested SPL to care for his child so his wife could return to work on the advice of her Doctor. His employer told him that he was only entitled to two weeks at full pay. The reason given from his employer that he was not entitled to the 14 weeks because he could not give birth and therefore the provisions relating to enhanced maternity pay did not apply to him. Mr Ali complained that he was being discriminated against on the grounds of his sex as the only reason why he was not entitled to the enhanced rate of pay was because he was a male.
Mr Ali followed his employer’s grievance process and the conclusion was that the Company did not consider Mr Ali was entitled to 14 weeks pay under the SPL policy. This was the first application for Shared Parental Leave that the Company had had to deal with.
Mr Ali’s claim for direct discrimination on the grounds of sex was successful. The tribunal found that his employer had assumed that as a man caring for his baby, he would not be entitled to the same pay as women performing the same role. The Judge said that “it was not a valid assumption to make in 2016”. Further, the Judge commented that “Either parent can perform the role of caring for their baby in its first year depending on the circumstances and choices made by parents”.
Note for Employers
This case suggests how the Judge’s are treating SPL; especially given that the reason for the introduction was to ensure that both parents are able to access time off to split child care responsibilities between them. It has been noted that Mr Ali’s employer will appeal the decision, and if that is the case we will bring you a further update to ensure that as an Employer you are up to date with the law.
In the meantime, however, it may be useful to check your policies on family leave. If you have a Maternity Policy which permits female employees who have given birth to an enhanced rate of pay during leave and this is not mirrored in the policy on SPL then you should take legal advice to ensure that you are not discriminating between males and females.