Q: We pay enhanced maternity pay but only statutory shared parental leave pay. A male employee has taken shared parental leave and raised a grievance because we don’t pay the same. Any advice?
A: Deana Bates, an employment solicitor at Simpson Millar LLP replies…
Unfortunately, the law in this area is far from clear, which is not helpful when situations such as this arise.
The concept of shared parental leave came into force for babies born/placed for adoption after April 2015, with the aim of supporting parents who both wished to have the option to take time off work and care for their new child.
Shared parental leave departed from the archaic view that a mother stays at home to look after a new baby and that this would be the only option available for new parents. The concept may seem revolutionary; however, the lack of guidance on matters such as pay for shared parental leave in comparison with maternity leave is somewhat troublesome for employers.
While the legislation relating to shared parental leave (The Shared Parental Leave Regulations 2014) does not set out a requirement to mirror shared parental pay with maternity pay, you must bear in mind that it’s crucial to avoid any sex discrimination.
Your male employee in this instance is aggrieved that he is paid less for shared parental leave than his female colleagues are for maternity leave and therefore feels he is being treated less favourably due to being male.
What does the tribunal say?
As the concept of shared parental leave is still relatively new and has been low on the uptake, the tribunal system is yet to set a precedent for employers on how to address this type of situation.
To err on the side of caution, remember that in making a decision to pay your female employees enhanced maternity pay and not replicating this for men taking shared parental leave, could prima facie amount to discrimination between men and women in the workforce.
This could leave your business vulnerable to a discrimination claim.
There have been two cases before the tribunal to date on this issue and the outcomes are somewhat conflicting.
In Hextall v Chief Constable of Leicestershire Police (2016), the father argued before an employment tribunal that he should be entitled to the same 18 weeks of enhanced pay for taking shared parental leave as a mother in the same workforce would be paid when taking maternity leave (using a female colleague on maternity leave as his comparator).
The tribunal rejected the father’s claim for direct sex discrimination and took the view that the correct comparator in this case would be a woman taking shared parental leave (this being the wife or civil partner of the woman who had given birth). In which case, the woman taking shared parental leave would be treated in the exact same way as the father bringing the claim; she would be entitled to the same shared parental pay irrespective of her gender. The father was unable to persuade the tribunal that the policy of paying only statutory shared parental pay did not amount to indirect sex discrimination.
Therefore, the stance taken in this case was that the male employee was not being treated any less favorably than a female employee taking shared parental leave and it was a matter of law that a man on shared parental leave could not be compared with a woman on maternity leave.
However, in Ali v Capita Customer Management Limited (2017), a male employee was successful in claiming indirect sex discrimination and was permitted to use a mother taking maternity leave (beyond her two weeks of compulsory maternity leave) as his comparator. This case focused on the argument that the caring responsibility for a new child was the purpose behind both maternity leave and shared parental leave and that this care could be offered by a man or a woman. If the same comparator had been used in this case, as was in the previous case, the outcome may have been different.
What happens in the meantime?
As the cases to date have only been first instance cases, they are not binding on other tribunals and therefore there is little guidance out there at present. This will remain to be the position until a case is heard by the Employment Appeal Tribunal. In the interim, all cases will turn on their own facts.
There is an argument that the provision of shared parental leave is a PCP (provision, criterion and practice), which is applied equally to men and women as both sexes can take shared parental leave; for example, a woman in a same-sex family or a man in a heterosexual family. This could be the position you take in respect of any potential liability for direct sex discrimination.
In relation to your potential liability for indirect sex discrimination, a question to ask yourself is whether there is any justification for your maternity policy granting enhanced pay to women on maternity leave. You should consider whether the right to enhanced maternity pay is a proportionate means of achieving a legitimate aim. If so, this could justify the disparity and mean you escape any potential liability in respect of an indirect sex discrimination claim.
A practical example of this type of justification could be where you have evidence to substantiate that your aim in offering enhanced maternity pay was to increase the uptake/to retain female employees in a male-dominated industry. This approach was used in the case of Shuter v Ford Motor Company (2013).
It is imperative to remember that cost alone would not be sufficient to justify what amounts to otherwise unlawful discrimination.
Do not bury your head in the sand and cause unnecessary delays in dealing with this grievance, as this could mean that any tribunal award arising from this matter could be increased by up to 25% due to your failure to address the grievance promptly.
Due to the lack of clarity from caselaw and the legislation at this stage, you may wish to await further developments before changing your policies in general. If you are unsure about how to proceed, it is important to seek advice from an employment expert. Having the right guidance can mean your business remains protected in such complex cases.