The Shared Parental Leave (‘SPL’) system allows new parents to share their leave entitlement following the birth or adoption of their child, with statutory pay entitlements set at the same rate as statutory maternity pay.
It is not uncommon for employers to pay enhanced pay to mothers on maternity leave over and above the statutory amounts. However, it is less common for employers to pay enhanced pay for SPL. Recent case law has helped to clarify the situation. In Capita Customer Management Ltd v Ali, the Employment Appeal Tribunal (EAT) confirmed that the failure of the company to pay a male employee enhanced shared parental pay, whilst paying female employees enhanced maternity pay, was not sex discrimination.
In this case, a new father wanted to commence his SPL following on from his initial two week paternity leave, for which he was paid in full. His employer had a policy which entitled female employees to 14 weeks full maternity pay following the birth of their child. Male employees were entitled to 2 weeks pay following the birth of a child. Mr Ali stated that the reason he wanted to take the SPL was to care for his daughter, as his wife was suffering with post natal depression and was medically advised to return to work. He claimed that he was dissuaded from taking this leave as he was told he would only receive statutory pay for that period, and that this was directly discriminatory on the grounds of sex. The reasoning for this was that he, as a man, wanted to care for his child and that he was not entitled to the same pay as a woman performing that role. The Employment Tribunal held that the claim for sex discrimination was successful. However, this was overturned on appeal by the EAT.
The EAT decided that it was wrong to determine that a woman on maternity leave was the proper comparator for Mr Ali. This is because purpose of maternity leave is for the benefit of the mother, not for the care of the child. The proper comparator would have been a woman seeking to take SPL. Therefore, it was not discriminatory on the grounds of sex to offer enhanced maternity pay to the mother but only statutory pay to the parent taking SPL.
However, the question of whether the same scenario could in fact constitute indirect sex discrimination (for example, the application of a provision, criterion or practice which disadvantages employees of a particular sex and cannot be objectively justified) has not yet been resolved, despite being considered in Hextall v Chief Constable of Leicestershire Police. Here, it was held that a failure to pay a man enhanced shared parental pay in line with enhanced maternity pay was not direct or indirect sex discrimination. On appeal, the Employment Appeal Tribunal found that the Tribunal made a number of errors when it was considering the indirect sex discrimination claim and the case has been remitted to another tribunal for it to be re-heard. Watch this space!