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15th October 2016

Shared Parental Leave – Discrimination Against Fathers

Shared Parental Leave - Discrimination Against FathersShared Parental Leave (SPL) was introduced in April 2015, as a more family friendly and flexible way in which working parents could manage time off work following the birth of a baby.

SPL allows maternity or adoption leave to be curtailed, with the mother or adopter electing to convert a portion of their maternity or adoption leave to SPL. This scheme allows up to a maximum of 50 weeks’ leave and 37 weeks’ pay to be shared between both parents. The periods of leave can be continuous or sporadic, and can be taken any time up to the child’s first birthday or the anniversary of the child being placed with the family where adoption has taken place.

The rules in relation to eligibility and applications for Shared Parental Leave are complex and employers should have a carefully drafted SPL policy in place against which they consider applications on a case-by-case basis.

One aspect of that the policy will need to address is how parents are paid during periods of Shared Parental Leave. If an employer pays statutory Shared Parental Pay (ShPP) to both parents, and it pays statutory maternity pay to mothers on maternity leave, then there is unlikely to be any issue.

However, if enhanced contractual maternity pay is paid, then the position is more complicated, because the risk of discrimination arises.

Recent Case in Glasgow, Father vs Network Rail

Indeed, a father has recently been awarded almost £30,000 (which included an award of £6,000 for injury to feelings) by the Glasgow Employment Tribunal when he brought a sex discrimination complaint against his employer, Network Rail. They had paid his wife an enhanced rate of pay in accordance with her contract when she took SPL, but paid him only the statutory ShPP rate of £139.58 per week.

Mr Snell initially raised a grievance with Network Rail about their Shared Parental Leave policy, alleging that he would be discriminated against because of his sex because payments to mothers on SPL would be at significantly higher rates to those made to fathers on SPL. His grievance, and his subsequent appeal, were rejected by Network Rail on the basis that they were complying with statutory requirements.

Mr Snell lodged a claim for indirect sex discrimination and, by the time the matter came before the Tribunal, Network Rail had revised its policy so that mothers and fathers are both only entitled to statutory ShPP.

It was therefore no longer in dispute that Mr Snell had been indirectly discriminated against. The Tribunal only had to make a decision as to the remedy. Mr Snell was awarded £28,321 and the Judge commented that: “By the time of the hearing it was no longer in dispute that Mr Snell was indirectly discriminated against by Network Rail in relation to his sex by the application of their family friendly policy which put the claimant at a particular disadvantage as a man, when compared with women during periods of shared parental leave.”

While this case represented a victory for Mr Snell, both his male and female colleagues taking SPL will be worse off when they take SPL as they will only be entitled to statutory ShPP.

Advice for Employers on Shared Parental Leave

There are further cases pending before the Employment Tribunal which will again examine this area and, while decisions made in the Employment Tribunal are not binding on future cases, this decision may be persuasive when those cases are considered.

Employers are advised to assess whether they may be exposed to discrimination claims due to any disparity in maternity pay and ShPP paid. Where a disparity exists, employers should ensure that the reason for this disparity is to enable them to pursue a legitimate aim, in order to avoid falling foul of discrimination laws. As part of the wider picture, employers may also wish to consider whether equalising the benefits available to men and women would assist in attracting and retaining employees of the highest calibre.

Clearly, this is a topic which we are unlikely to have heard the last of. It is an area for employers to keep under review, particularly as other cases progress through the Employment Tribunal and likely the appellate Courts.

*All information is correct at the time of publishing

Katy Parkinson

Napthens LLP – Employment Law Specialist

Katy is one of our Employment Law Specialists from Napthens Solicitors. Read more

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