Male enhanced shared parental leave
Is it discriminatory if an employer fails to pay men enhanced shared parental leave?
No, the Employment Appeal Tribunal (EAT) have recently ruled that it is not discriminatory on the grounds of sex, for employers to refuse fathers enhanced shared parental leave (SPL) pay and allow women to be entitled to enhanced maternity pay.
The take up of SPL has not increased and this may be due to women being entitled to an enhanced maternity package as opposed to statutory shared parental leave pay and women may rather take the full maternity leave than share the leave with their partners.
There has been a couple of cases (Capita v Ali and Hextall v Chief Constable of Leicestershire) that have been through the courts of appeal on whether there is a risk of discrimination claims by men whose female colleagues are entitled to more favourable terms including enhanced maternity pay. The EAT ruled that it isn’t discriminatory on the grounds of sex, whether direct discrimination, indirect discrimination or on an equal terms claim.
The claimants argued that the extended leave after childbirth should be viewed as childcare rather than for health and safety reasons related to childbirth and the EAT rejected this.
The EAT stressed that the maternity leave is connected to the health and wellbeing of the mother having given birth and the special bond with their new born child. The purpose is not mainly to facilitate child care.
The EAT decided that the correct comparator for the direct discrimination claim was a woman on SPL and not a woman on maternity leave. Therefore, a woman on SPL would have been paid at the same rate as the claimants and subsequently, they hadn’t been treated any less favourably. As a result, there can be no direct discrimination claim.
Equality Act 2010 intervenes
From the case of Mr Hextall, it is important to note that the equal terms claim could not succeed since the Equality Act 2010 states the following exception:
“a sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth”.
Recent reports suggest that both Mr Ali and Mr Hextall are seeking permission to appeal to the Supreme Court.
While the decision is good news for employers, it doesn’t help to improve mobility and diversity in the workplace and reemphasises women being the primary carers.
Therefore, many employers are looking to equalise their policies with regards to the pay element. For employers who are looking to enhance their SPL policies, you may wish to consider whether the enhanced pay will cover all periods of SPL or for a specific number of weeks. Also, employers may wish to consider whether employees who have benefited from enhanced maternity pay will also benefit from enhanced shared parental pay.
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