In the recent case of Shuter v Ford Motor Company, Ford was successful in arguing that it is entitled to pay additional paternity leave at the statutory minimum, despite the fact that female employees’ maternity pay at the company is paid at 100% of basic pay for up to one year. Whilst the judgement related specifically to additional paternity pay, it does hint at potential ramifications upon shared parental leave, with the new regulations coming into force later this year.
Mr Shuter took five months’ additional paternity leave and only received the statutory minimum pay during that period (although his two weeks’ ordinary paternity leave was paid at full pay). He argued that he had been subject to sex discrimination as the differentiation between his treatment and that of female employees led to him missing out on £18,000.
However, Ford successfully argued that its policy is justified on the basis that women are under-represented at the company and the policy is a component of a long-term strategy to recruit and retain more female staff. The offer of generous maternity pay was one way in which Ford managed to increase female representation in their workforce from 6.2% in 1999 to 8.9% in 2013, and Ford supplied the tribunal with such statistical evidence as part of the proof of its reasoning for not offering additional paternity pay with additional paternity leave.
Shared parental leave will mean that working couples with children due on or after 5 April 2015 will be entitled to share maternity leave and pay (provided each parent qualifies for leave and pay individually). Many employers are undecided as to whether to offer enhanced pay for shared parental leave; potential increased costs must be weighed against the possibility of male workers bringing sex discrimination claims where employers merely pay the statutory minimum.
What this case does suggest is that if employers do opt merely to pay the statutory minimum, they may be able to justify such a policy with a detailed justification of the sort provided by Ford. Whilst the case did not relate to shared parental leave, it is inevitable that a test claim such as this will be forthcoming once the new regulations come into force.
Reminder:- fathers’ right to time off for ante-natal appointments
The right to unpaid time off to accompany a pregnant woman to ante-natal appointments comes into force on 1 October 2014 and is available to employees and qualifying agency workers.
The new right applies to the pregnant woman’s husband, civil partner or partner (including a same-sex partner), the father or parent of a pregnant woman’s child, and intended parents in a surrogacy situation who meet specified conditions. Qaulifying employees are entitled to unpaid leave for one or two appointments and the amount of time off is capped at 6.5 hours for each appointment.