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Shared parental leave: what are your employer rights?

30.05.2019

In a recent case, the Court of Appeal ruled that two male claimants did not suffer discrimination when their employers failed to pay enhanced shared parental pay which would have been equivalent to the amount a woman on maternity leave would receive for the same period of time.

What is the difference between maternity leave and shared parental leave?

The Court disagreed that the purpose of maternity leave is the same as shared parental leave, specifically the facilitation of childcare, and that its purpose is to protect a woman in connection with the effects of pregnancy and motherhood. The Court of Appeal also held that the tribunal and Employment Appeal Tribunal (EAT) were wrong to characterise the claim in this recent case as indirect discrimination, rather than equal pay (such claims are equally exclusive under the Equality Act 2010). As the Equality Act disqualifies equal pay claims in relation to terms that give special treatment to women in connection with pregnancy or childbirth, the claim had to be rejected.

Case study

Looking in depth at the above case, a business customer adviser (A) and a serving police constable (B) both decided to take shared parental leave (SPL) after becoming new fathers. Their respective companies offered enhanced maternity pay to women taking maternity leave; 14 weeks’ full pay followed by 25 weeks’ statutory maternity pay (SMP) in the case of A’s employer and 18 weeks’ full pay followed by 39 weeks’ SMP in the case of B’s. However, both companies only offered the statutory rate of shared parental pay (SPP) to those taking SPL. Both fathers separately brought employment tribunal claims against their employers, arguing that the failure to pay them the equivalent of enhanced maternity pay was direct discrimination contrary to Section 13 of the Equality Act 2010 and indirect discrimination contrary to Section 19.

The employment tribunal in A’s case supported his claim for direct discrimination but this was overturned by the EAT on appeal, and he went on to appeal to the Court of Appeal.

The tribunal in B’s case rejected his discrimination claims, and he appealed the indirect discrimination claim to the EAT. The EAT held that the tribunal had got its approach wrong and sent the claim to a differently constituted tribunal. They rejected B’s employer’s cross appeal that the tribunal had made a mistake in classifying the claim as indirect discrimination rather than equal pay. Both A and B, and B’s employer appealed again to the Court of Appeal.

A accepted that, with his direct discrimination claim, there was a material difference in circumstances between him and a female equivalent in regards to the two-week period of compulsory maternity leave, since this is aimed at protecting a woman’s biological condition during pregnancy. However, he argued that for the remaining 12-week period of his SPL, he should receive the same entitlement as a female employee taking maternity leave. The Court of Appeal disagreed and rejected A’s proposition that the main purpose of SML is the same as SPL.

They felt the predominant purpose of maternity leave is to protect a woman in connection with the effects of pregnancy and motherhood. Consequently, the proper comparison for A was a female worker on SPL. As there would be no difference between a man on SPL and woman on SPL, A’s appeal had to be rejected.

In B’s case, the Court of Appeal agreed with his employer that his claim was properly characterised as an equal pay claim under Section 66 of the Equality Act 2010, rather than an indirect discrimination claim under Section 19. They believed the employment tribunal and EAT were wrong to hold that his and his female equivalent’s terms of work were not ‘less favourable’ for the purposes of Section 66 merely because the standard set of terms and conditions provided to him included terms governing maternity leave and maternity pay. Clearly, those terms did not apply to B. However, as Section 66 does not operate in relation to terms that afford special treatment to women in connection with pregnancy or childbirth, it meant B’s equal pay claim could not proceed.

Furthermore, B could not bring an indirect discrimination claim because of Section 70, which prevents sex discrimination claims relating to terms that would be modified by Section 66, so in any event, the Court of Appeal would have held that the tribunal had correctly rejected B’s indirect discrimination claim.

How we can help

Parental rights are a complex area of law that employers must be on top of to ensure you are doing the right thing for your employees and to protect your business and reputation.

To speak to our employment law solicitors in Bristol and South Gloucestershire about any aspect of maternity or parental leave, call us on 0117 905 9763 or complete our online enquiry form.

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