An employment tribunal has recently ruled on the level of compensation awarded to a male employee, following the employer’s concession that their policy on paying during periods of shared parental leave indirectly discriminated against men.

Snell v Network Rail Infrastructure Limited, ET

Facts

Mr and Mrs S both worked for Network Rail. They applied under Network Rail’s shared parental leave (SPL) policy to take a period of SPL each: Mrs S planned to take 27 weeks; Mr S, 12 weeks (he later changed his request to 24 weeks).

Under Network Rail’s ‘Family Friendly Policy’, mothers and primary adopters were entitled to take 26 weeks of SPL paid at full pay, followed by 13 weeks paid at the statutory rate. Fathers or partners of the mother/primary adopter were entitled to 39 weeks’ statutory pay followed by 13 weeks’ unpaid SPL.

Mr S issued a formal grievance about the disparity in pay available to men and women under the policy. His grievance was eventually rejected after lengthy delays on the part of Network Rail.

Mr S issued a claim against Network Rail for unlawful sex discrimination. Prior to the hearing, Network Rail conceded that Mr S had been indirectly discriminated against in relation to his sex under the terms of their Family Friendly Policy. They had attempted to justify the terms of the policy on the grounds that it was designed to attract and retain women in a male-dominated workforce, which they argued was a legitimate aim. However, they had failed to produce evidence in support of this. Mr S’s claim for direct sex discrimination was withdrawn.

Tribunal decision

The tribunal awarded Mr S the sum of £6,000 in respect of injury to feelings as well as £16,130 future loss (the difference between his normal weekly rate of pay and the statutory rate of pay for a period of 24 weeks. In total, his award was almost £29,000, including an uplift for the employer’s failure to follow the Acas Code of Practice in dealing with his grievance.

Consequences

At the time the SPL Regulations came into effect, it was anticipated that there was a risk of sex discrimination if the amount of contractual pay available to men and women taking shared parental leave varied. This was pointed out in the Government’s technical guidance on shared parental leave and pay.

Since this decision only deals with remedy, (the employer having conceded indirect sex discrimination) it doesn’t answer questions such as whether it is discriminatory to pay enhanced pay to a woman on maternity leave but not to a man taking shared parental leave.

What is concerning about the case is that the tribunal awarded Mr S his future losses on the basis that he should be paid in full for his proposed 24 weeks of SPL. This does not account for the fact that by the time he planned to start his period of SPL, his wife had apparently already exhausted her entitlement to SPL paid at the full rate. In paying mothers and fathers at different rates for periods of SPL, the employer’s policy consequently did not make it clear that there was a single ‘pot’ of enhanced pay available.

The unfortunate, but predictable, consequence of this decision is that the employer has now changed its SPL policy and reduced the amount of pay available to statutory pay for both mothers and fathers.

The content of this article is for general information only. For further information regarding shared parental leave, please contact a member of Birketts' employment team. Law covered as at October 2016.