An Employment Tribunal has decided that it was direct sex discrimination not to pay full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay.
The system of shared parental leave (“SPL”) allows parents to share leave between them for the purposes of caring for their new baby. This right applies to both opposite-sex and same-sex couples, and similar rights apply to couples who are adopting a child. There is also a right to up to 37 weeks of statutory shared parental pay which can be shared between the parents, at the current rate of £138.18 per week (or 90% of normal weekly earnings if less).
The regime works by the mother shortening her maternity leave, meaning that the amount of SPL and pay available is reduced by any time spent by the mother on maternity leave after the initial compulsory leave period. The compulsory maternity leave is two weeks in most cases, increased to four weeks for certain types of work. (For more information, see our inbrief on SPL.)
It is relatively common for employers to pay enhanced pay to mothers on maternity leave, but less common to enhance pay for SPL. As men cannot take maternity leave, there is an argument that it is sex discrimination to pay different amounts for maternity leave and shared parental leave. This was the main issue in a recent case decided by the Employment Tribunal in Leeds.
Facts of the case
Capita Customer Management (“Capita”) had various policies about pay for different types of family leave. Employees taking maternity leave were entitled to 14 weeks of full basic pay, followed by 25 weeks of statutory pay. Employees taking two weeks of ordinary paternity pay were entitled to full pay for that period, but there was no right to any additional pay above the statutory rate for SPL.
Mr Ali took two weeks of paternity leave immediately after the birth of his baby. His wife was unwell with post-natal depression and had been advised to return to work, so Mr Ali asked to take SPL so that he could care for the baby. He was aware that female employees on maternity leave from Capita were entitled to 14 weeks at full pay and asked for the same treatment. When this was refused, Mr Ali submitted a grievance alleging sex discrimination. When this was not upheld, he brought various claims in the Employment Tribunal. His main contention was that it was direct sex discrimination to provide full pay to mothers on maternity leave but not to fathers on SPL.
The Employment Tribunal’s decision
The Employment Tribunal decided that this treatment of Mr Ali did amount to direct sex discrimination.
It was accepted by both sides that the initial compulsory maternity leave period of two weeks was specifically associated with recovery after childbirth, and so was unique to the mother. The Tribunal considered, however, that after this two-week period, Mr Ali could compare his treatment with that of a hypothetical female colleague on maternity leave. She would be entitled to full pay for 14 weeks, while he was only entitled to statutory pay. This was direct sex discrimination
The Tribunal rejected Capita’s argument that the full 14 weeks of maternity leave were special treatment in connection with childbirth, which is an exception to sex discrimination under the Equality Act 2010. Refusing to accept that this exclusivity should continue after the initial two weeks, the Tribunal noted:
“In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role”.
The Tribunal concluded that Mr Ali wanted to carry out a caring role which was not exclusive to the mother, so equality of treatment required the same pay for carrying out the same role.
At first sight, this decision may seem worrying for employers. Many have taken the view that they can enhance maternity pay, and avoid the risk of discrimination claims so long as both male and female employees taking SPL are paid at the same lower rate.
It is important to note that this is only an Employment Tribunal decision, so it is not binding in other cases. There are also various reasons why the analysis may not be legally correct:
- The Tribunal allowed Mr Ali to compare himself with a hypothetical female colleague on maternity leave, but that is not necessarily the correct comparison. Both men and women can take SPL, so it is strongly arguable that the correct comparator is a female colleague taking SPL. As the right applies to same-sex couples, there could even be a direct comparison with a female colleague in Mr Ali’s circumstances – a female employee who wants to take urgent parental leave after her partner has become unwell and had to return to work. If this comparison was used in Mr Ali’s case, there would be no sex discrimination because both male and female employees would be paid at the same statutory rate.
- The EU Pregnant Workers Directive provides for a minimum maternity leave period of 14 weeks. Various decisions under European law have recognised that this is a right of women who have given birth and is designed to protect their biological condition and the mother-baby bond. This would suggest that it is still permissible to provide special treatment to women on maternity leave.
- Other Employment Tribunal decisions have taken a different approach on similar issues. In the 2014 case of Shuter v Ford Motor Company, a male employee’s claim for enhanced additional paternity pay was rejected on the basis that paternity and maternity leave were for different purposes and not comparable. More recently, in Hextall v Chief Constable of Leicestershire Police, a male police officer unsuccessfully argued that he should receive full pay for SPL, the Tribunal finding that the correct comparator was a female officer on SPL rather than on maternity leave.
- A better argument might be that this is indirect sex discrimination. A rule that enhanced pay is only paid for maternity leave rather than SPL will disadvantage both men and women, because both sexes can take SPL. But this will particularly disadvantage men, because they never have the option of taking maternity leave instead. The difference with indirect discrimination is that the employer’s pay policy can potentially be justified, which is not possible with direct discrimination. In Shuter v Ford, the employer’s policy of paying full pay to women on maternity leave in order to recruit and retain them in a male-dominated workforce was accepted as a valid justification.
The Employment Tribunal in Mr Ali’s case seemed concerned about avoiding any assumption that mothers on maternity leave should receive special treatment, when fathers might want to carry out exactly the same caring role. This may be a laudable aim, but whether it is legally required remains in doubt until we have a decision from a higher court.