Shared parental leave

The Shared Parental Leave regime applies in respect of children who were due to be born, or placed for adoption, on or after 6 April 2014. It offers mothers, their partners and adoptive parents greater flexibility in deciding how to share time-off work to care for their child in the year following birth or adoption. Parents can share up-to 52 weeks of leave (and 39 weeks of pay) which can be taken in parallel or consecutively.

The facts

Network Rail’s shared parental leave policy stated that mothers (or primary adopters) were entitled to 26 weeks’ of full pay while on shared parental leave. However, fathers and partners were only entitled to statutory pay. David Snell and his wife both worked for Network Rail. Mr Snell opted to take shared parental leave. He raised a grievance (which was dealt with in a protracted manner and was ultimately unsuccessful) and subsequently a tribunal claim on the basis that he was being directly and indirectly discriminated against on the basis of his sex, as mothers received greater entitlements than fathers/partners taking the leave.

The decision

The direct discrimination claim was dropped before the hearing. Network Rail conceded that their policy was indirectly discriminatory: far more men than women will be a “partner” for the purpose of shared parental leave. Network Rail’s initial defence that the policy could be objectively justified was also dropped. The hearing was simply to determine the remedy.

The Judge held that:

“The Policy put the Claimant at a particular disadvantage as a man when compared with women during periods of shared parental leave. Mr Snell was distracted by Network Rail’s failure to respond to his grievance and the level of pay he would receive during shared parental leave. He was unable to give his wife his full attention and support while she was ill”.

Before the hearing, Network Rail equalised down their shared parental leave entitlements. Both mothers and their partners will now only receive the statutory amount. Network Rail argued that this should therefore be what is offered to Mr Snell but the tribunal disagreed. However, insufficient evidence had been led to establish that the new policy would apply to Mr Snell as he had requested shared parental leave under the old policy. David Snell was awarded over £28,000 for the discrimination and distress, including £6,000 injury to feelings due to the time Network Rail took to complete their grievance procedures.

What the decision means for employers

In Snell v. Network Rail, the issue was that partners taking shared parental leave had different entitlements compared to mothers taking shared parental leave.

More commonly, employers ask: “can I pay employees on maternity leave more than those on shared parental leave?”. The case of Shuter v. Ford illustrates how such a policy can potentially be objectively justified. In that case (which dealt with maternity leave and additional paternity leave which preceded the shared parental leave regime) it was alleged that the fact that the male Ford employees were not offered paternity pay mirroring the maternity pay offered to female Ford employees amounted to indirect sex discrimination. Ford were able to validly justify the difference on the basis that generous maternity benefits were a proportionate way of achieving Ford’s aim of recruiting and retaining women in a predominantly male workforce. This justification was available to them specifically because of the make-up of their workforce and their difficulties in retaining female employees. However, many other employers will struggle to objectively justify a difference between shared parental leave and maternity pay. It could be harder still to justify differences in pay between mothers/primary adopters (predominantly female) and fathers/partners (predominantly male) taking shared parental leave.

For more information on the Shared Parental Leave regime, see our comprehensive guide available here.