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Share And Share Alike: Discrimination Implications Of Shared Parental Leave?

Share And Share Alike: Discrimination Implications Of Shared Parental Leave?

This year brings more interesting developments to the world of employment law, particularly with the introduction of Shared Parental Leave (SPL).  As discussed in our blog in July 2014, the new legislation applies to children expected to be born or adopted on or after 5 April 2015.  It aims to provide parents with greater flexibility in terms of the time they take off following the birth or adoption of their child.   Many employers will currently be considering their own internal policies and procedures in light of this new entitlement.  In doing so, one of the key issues which they will require to determine is whether to enhance pay for employees taking SPL, or merely pay the statutory minimum rate.  There are a number of factors which will feed into that decision, not least of which should be ‘could it be discriminatory to not to?’

The short answer to this question is, yes it could be.  But only in situations where employers currently offer an enhanced form of maternity pay.

The basic position is that SPL is to be paid at the same rate as statutory maternity pay for a combined period of 39 weeks and may be shared between parents.  There is no statutory obligation requiring employers to provide any enhancement to statutory shared parental pay.  As a result, many employers may decide to only offer the minimum, statutory form of pay.  However, there are concerns that it may be discriminatory not to enhance SPL where enhanced maternity pay is offered.

An argument based on direct discrimination is unlikely to be successful:  for a man to argue that he has suffered direct sex discrimination as a result of not being entitled to enhanced shared parental pay, he would need to use the comparator of a woman on SPL.  If an employer chooses not to offer enhanced pay for SPL, then neither men nor women would receive the benefit and there would be no direct discrimination. 

But what about indirect discrimination?  The argument that failing to offer enhanced shared parental pay could be indirectly discriminatory certainly seems to hold more weight.  This issue arose in a similar context in the recent case of Shuter v Ford Motor Company Ltd.  Mr Shuter challenged Ford’s practice of paying full pay to women on maternity leave for 52 weeks, but only paying statutory pay to employees on additional paternity leave. The specific facts of this case enabled the employer to rely on a particular policy which aimed to retain women in a workplace dominated by men.  Ford relied on this policy to objectively justify their decision and the indirect discrimination claim failed.  The Tribunal did however accept that men as a group, and Mr Shuter in particular, had been placed at a disadvantage by Ford’s policies. Had Ford not been able to cogently explain their reasons for the difference in treatment, and produce detailed evidence in support of this, the outcome may have been very different. 

Many employers would not be in a position to advance arguments akin to those put forward by Ford with regard to their workforce.  What is the position for them?  Ultimately, as the Employment Tribunal’s judgment in Shuter was not appealed, we will have to wait and see how tribunals and the higher courts deal with similar issues when they arise in the future.  In the meantime employers who currently offer enhanced maternity pay have the unenviable task of making a decision on whether they want parents on SPL to benefit from an enhanced form of pay.  The costs associated with offering such a benefit need to be weighed against any desire to  hold off doing anything until the full impact and uptake SPL can be assessed, which brings with it the risk of an indirect discrimination claim.

If you would like to discuss this further, please get in touch with me, or with your regular contact in the Burness Paull employment team.

Mel Sangster