Shared parental leave is a point of discussion this week, with HRs, employment lawyers and employers, not to mention employees, expecting a child. So, following the case of a father receiving more than £28,000 for sex discrimination, following his shared parental leave request, we asked employment solicitors to tell us their thoughts ahead of the full judgement. Scroll down for updates…
Need a quick re-cap? In a nutshell: David Snell, a father who wanted to take shared parental leave, along with his wife, who also works for Network Rail, when their baby was born, in January. When he discovered that he would be paid less than his wife for the time he was on parental leave, he raised a grievance, and ultimately ended up in tribunal, being awarded £28, 321.03. Network Rail has responded by cutting the amount that female employees receive on shared parental leave to bring them in line with the lower amount that male employees receive.
Here’s what employment solicitors had to say…
On the case
Harriet Vaines, associate solicitor, Winckworth Sherwood says: “Shared Parental Leave is a relatively new and untested area of law. The recent victory by David Snell against his employer, Network Rail, in the Employment Tribunal, whist only a first instance decision, serves as a useful reminder that employers must take special care when drafting and implementing family friendly policies or they risk opening themselves up to claims of discrimination.”
Jeanette Wheeler, Partner and Head of Employment Law at Birketts LLP says:
“We haven’t yet seen the tribunal’s judgment and without knowing the full facts or the basis of the individual’s claim in this case it is difficult to comment with any certainty, but it appears that the tribunal agreed that it was indirectly discriminatory to pay male employees on SPL at a lower rate than its female employees.
“The decision is a somewhat pyrrhic victory for employees. Whilst the individual claimant was reportedly awarded nearly £30,000 in compensation, the employer has responded by removing the enhanced pay for all employees taking shared parental leave in the future, meaning that everyone has lost out on what was a reasonably generous amount of enhanced pay.
“It would be helpful if this case is appealed to the Employment Appeal Tribunal, which would clarify the legal principles and assist employers in deciding how to design their policies going forward. In any event, we are likely to see more cases of this nature reaching the tribunals. It is possible that the Government will take steps to prevent employers from equalising pay downwards, as this is an unintended and undesirable consequence of the right to take shared parental leave.”
On shared parental leave
Jeanette Wheeler, Partner and Head of Employment Law at Birketts LLP says:
“It was anticipated by many people at the time the right to take shared parental leave was introduced that it could lead to a challenge of this nature, if employers offered enhanced rates of pay to women on maternity leave but didn’t extend the enhancement to men on shared parental leave. Government guidance was clear that it regarded it as lawful for employers to treat women on maternity leave and men on shared parental leave differently. What was not clear (at what appears to have been the issue in this case) was whether employers could lawfully pay men and women at different rates for a period of shared parental leave.”
“The process for applying for and taking shared parental leave is complex and is set out in detail in the legislation. In this case, it appears that the employee chose to follow the employer’s own internal grievance procedure to challenge the payment terms that would apply during his period of shared parental leave. Employers should ensure that if a formal grievance is submitted, they follow their own procedures for dealing with it as well as the Acas Code of Conduct.”
How should employers deal with shared parental leave?
“Employers should review their family leave policies and identify how terms more favourable to one sex may cause issues of discrimination when employees exercise their statutory rights such as shared parental leave,” says Alan Lewis, employment partner at Irwin Mitchell.
“If changes to policies are required, appropriate consultation procedures must be followed, being careful not to commit a breach of contract where agreement with employees to revisions is necessary.
“Further, employers would be well advised to deal with grievance issues sensitively and promptly, rather than wait for several months, as happened in this case, before even holding the grievance hearing.”
Natalie Painter, solicitor in the employment law team at Blake Morgan says:
“While the take up of SPL is very low (only 1.5% of eligible parents according to research earlier this year), employers must be prepared to handle requests or potentially face the consequences. Handling it badly (which could even be through not understanding the details of SPL properly) could result in employees raising grievances or even resigning and claiming constructive dismissal and/or sex discrimination. Employers must ensure that their policies accurately reflect the law and that staff are properly trained on the requirements and the process. ACAS has produced some good guidance on SPL.”
There are more comments in the section below. Please do join the conversation and add in your own thoughts.
Employers need to be alive to the risks of having policies in place which either directly or indirectly benefit a particular sex, for example, offering enhanced maternity pay, but only statutory shared parental pay. Whilst a failure to match shared parental pay with maternity pay will not amount to direct sex discrimination, it is likely to amount to indirect discrimination and therefore will be unlawful unless the employer can “objectively justify” the difference in treatment by showing it is a proportionate means of achieving a legitimate aim.
A legitimate aim for offering increased benefits for women may be, for example, that the employee is seeking to recruit and retain women in a male dominated workforce. Employers should therefore carefully consider their motives before putting in place policies which could potentially be deemed to be discriminatory.
Some policies are easier to make fair than others. SPL is a tricky one, as the legal position regarding enhanced pay is not entirely certain. In the case reported here, Network Rail’s response to the discrimination claim was to limit pay for women to statutory only, rather than enhancing the pay for men.
This could be the least risky step to take, but is also a shame if employers want to promote a positive family-friendly environment. Training for HR, managers, and indeed all staff is also essential. Whilst implementing fair policies is in the employer’s control, employers could also be liable for sex discrimination by their staff and must ensure that they have taken all reasonable steps to prevent discriminatory behaviour.
The decision does not surprise me, but the response of Network Rail by reducing the enhanced package for women is very disappointing given that only 1.5% of men take up the SPL. Now even less men will consider taking it up, and women are disproportionately affected.