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Shared parental leave and sex discrimination


Shared parental leave and sex discrimination

In May of this year, the Court of Appeal handed down its judgment in two joined cases involving shared parental leave. The argument involved whether men receiving a lower rate of pay as part of the shared parental leave regime amounted to discriminatory treatment compared to mothers receiving enhanced maternity pay rates whilst on leave to look after children. This post considers the law as it stood, before giving a brief summary of the decision in Hextall and concluding by summarising any points which should be noted by employers as a result.

What is Shared Parental Leave?

Shared parental leave is where a mother can choose not to take some of her maternity leave, thereby triggering the shared parental leave regime. It should be remembered however, that there is a compulsory period of maternity leave which is normally two weeks. Thereafter, there is a 50 week period which can be divided as appropriate between the Mother and father. The highest that the Partner taking shared parental leave can be paid is the statutory shared parental pay which at the time of writing is £148.60 per week. Whilst there was previously a regime in place for a Father to take two weeks’ statutory paternity leave, this is largely seen as ineffective with the Trades Union Congress (TUC) stating that in 2016, one in four Fathers missed out on statutory paternity pay, either due to not qualifying for leave, or due to being unable to afford to take the time off taking in to account the relatively low rate of statutory paternity pay. It is also worth noting that there is no requirement on the Mother as to whether shared parental leave is to be implemented – it is ultimately up to her whether to continue to take maternity leave.

Hextall

Briefly, the background to the joined cases was as follows. One employee from Capita argued that his employer had directly discriminated against him, treating him less favourably on the ground of gender. This was on the basis that owing to his company’s policy for maternity leave, female employees would be paid at full pay for the first 14 weeks of leave taken, whilst he would only be entitled to the statutory rate of pay under the shared parental leave scheme for any leave which he chose to take during this period. The argument was put in slightly different terms by another employee (a police constable), who stated that whilst both parents received the rate of shared parental leave at the same statutory rate, its impact was said to be far greater on fathers than on mothers, as fathers would feel that they were unable to take leave to look after a child.

However, in dismissing the Capita employee’s claim the Court of Appeal was keen to emphasise the many “important differences” between shared parental leave and statutory maternity leave, not least the fact that statutory maternity leave is partially compulsory, whereas shared parental leave is optional in nature, and that statutory maternity leave can be taken immediately whereas shared parental leave cannot. Further, the Court of Appeal was keen to clarify that shared parental leave had not changed the necessity of, or the principles underlying, maternity leave with the Court highlighting various examples including recovery from pregnancy and childbirth. As such, the Capita employee had not been discriminated against as the regime for maternity leave was completely different to shared parental leave, and if making a claim of direct discrimination, then a correct basis of comparison was to a woman on shared parental leave.

In terms of the argument made by the Police Constable, that the impact was far greater on fathers, the claim again failed because maternity leave fell within the exception of special treatment to be afforded to women in connection with pregnancy or childbirth. [Whilst some other interesting arguments are made about whether his claim should have been characterised as an equal terms or equal pay claim, it is beyond the scope of this article to comment on this].

What does this mean For Employers?

Arguably this will come as a relief to employers, who will not need to be apprehensive about facing further claims of direct or indirect discrimination simply due to having had a policy in place which mirrors the existing statutory framework. As well as the obvious cost savings to employers of not having to pay fathers at the same rate as mothers, as the Court of Appeal stated, if the practice of paying fathers less had been found to be indirectly discriminatory, this would have meant employers needing to put forward a reason why paying partners less could be justified as a proportionate means of achieving a legitimate aim (the defence to a claim of indirect discrimination). Nonetheless, in terms of the wider picture of shared parental leave, with its use being reported as low as 2% in February 2018, it is argued that this case does little to take the existing legislation further forward.

For more information on the ruling or how it may impact on you please contact a member of our Employment Law team

Posted by Chris Phillips

Partner

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