The first case regarding the amounts paid to men and women on shared parental leave has been decided by an employment tribunal in Glasgow. The claim was made by a father, Mr Snell. He and his wife (the mother) both worked for Network Rail and intended to share their leave, with Mr Snell taking 12 weeks and his wife taking 27 weeks.
Network Rail had created a family-friendly policy, which combined rules on maternity, adoption, surrogacy and shared parental leave. The policy described all leave, other than the two weeks' compulsory maternity leave, as 'shared parental leave'. As a result, the mother (or primary adopter or first surrogate parent) was entitled to 26 weeks' full pay (described by the policy as 'ordinary shared parental leave'), while the father was entitled to be paid at the statutory rate only.
Before the hearing, the father had withdrawn his direct sex discrimination claim ‒ apparently on the basis that a female partner of the mother would have been treated the same way, rather than the exemption in the Equality Act 2010 regarding unequal pay in connection with pregnancy or childbirth. Network Rail had initially contested indirect discrimination and suggested that any disadvantage could be justified, based on a legitimate aim of recruiting and retaining women in a male-dominated workforce. Before the hearing, indirect discrimination was conceded, so the tribunal was left to determine remedy only.
This decision provides little to advance the thinking on whether differences in pay between women on maternity leave and men on shared parental leave would be indirect sex discrimination and, if so, whether that could be justified. In the statutory pay scheme, the government allows for a difference of treatment (albeit that the six-week period of different treatment is much shorter than most corporate schemes and, as a result, probably easier to justify).
However, an employer which has combined its family leave policies into a single family-friendly policy like that of Network Rail should seek advice. It may be easier to justify a difference in treatment in relation to pay if that difference is reflected in different types of leave.
For further information on this topic please contact Lucy Lewis at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.