Shared Parental Pay – ET Upholds Father's Discrimination Claim

The introduction of the Shared Parental Leave Regulations 2014 has given eligible parents more flexibility as to how leave can be taken after the birth or adoption of a child.

Shared parental leave (SPL) enables mothers to share up to 50 weeks' maternity leave and 37 weeks' pay with their partner so that both parents are able to keep a strong link to their workplace. However, the Regulations only require that employees taking SPL are paid at the statutory rate, which is currently £140.98 per week, or 90 per cent of the employee's average weekly earnings, whichever is lower.

There is no statutory requirement for employers that offer enhanced maternity rights to women on maternity leave to 'mirror' those arrangements for employees who opt to take SPL.

However, guidance produced by the Government – 'Employers' Technical Guide to Shared Parental Leave and Pay' – stresses that if an occupational scheme is offered to a mother on SPL, it could constitute sex discrimination if the same rights are not afforded to fathers or a mother's partner.

In a recent case on this topic (Ali v Capita Customer Management Limited), the Employment Tribunal (ET) upheld a father's claim that a policy giving mothers with 26 weeks' employment service the option of 14 weeks' enhanced maternity pay followed by 25 weeks payable at the statutory rate, whereas fathers were only entitled to take two weeks' paternity leave on full pay then SPL paid at the statutory rate, was discriminatory on the grounds of sex.

In the ET's view, the aim of SPL is to encourage fathers to take a greater role in childcare. It is up to the parents to choose who has the role of primary carer and the decision should be free from 'generalised assumptions' on the part of the employer that the mother is better placed to fulfil this role than the father. As the judgment was at ET level, it is not binding.

However, it has been reported that the employer intends to appeal against the decision. Certainly, a ruling of the Employment Appeal Tribunal, bringing clarity on this issue, would be welcome.

Meanwhile, employers are advised to review their own SPL policies. Where the treatment of men and women is different, can this be objectively justified if challenged?

Contact us for individual advice on this issue.

Posted by Peter Nicholas on Wednesday, August 30, 2017 at 10:49 AM