Should men and women be paid the same when taking shared parental leave?
The shared parental leave provisions were introduced in April 2015 and recently the first case on this issue has been decided by a Scottish Employment Tribunal. The outcome of this case is that the employer Network Rail have been ordered to pay compensation of £28,000.
Since April 2015 men and women have been able to share maternity leave by opting to take shared parental leave. The full details of how it works can be found here.
Under the Equality Act 2010 it is unlawful to apply a provision, criterion or practice which puts a person with a particular characteristic at a disadvantage compared to others who do not have that characteristic. In this case the characteristic was gender.
Mr Snell and his wife were both employed by Network Rail and when Mrs Snell became pregnant they opted to share her maternity leave so that Mrs Snell would opt for shared parental leave. When Mr and Mrs Snell applied for parental leave they were informed that Mr Snell was only entitled to statutory parental pay, which is currently £139.58 per week, whereas Mrs Snell was entitled to receive full pay for 26 weeks.
Mr Snell initially raised a grievance about the issue stating that he considered their policy to pay women at a higher rate than men was discrimination because of his sex. Network rail refused to change their position and argued that they were doing what was legally required in respect of shared parental leave and pay.
Mr Snell made a claim to the Employment Tribunal for indirect discrimination.
The Employment Tribunal decided that the policy applied by Network Rail placed Mr Snell at a particular disadvantage when compared to a woman who was also taking shared parental leave, as a woman would be entitled to enhanced pay.
Mr Snell was awarded damages of £28,321.03.
Points to Note
After the decision Network Rail took the controversial decision to reduce maternity pay from enhanced pay to statutory only, so that men and women are paid the same regardless of whether it is a period of maternity leave or shared parental leave.
This case is from the Employment Tribunal and is therefore not binding on other Employment Tribunal’s but does give a good indication of how a similar case is likely to be decided.
What is interesting about this case is that the comparison was between a man and a woman who are both taking shared parental leave. If Mrs Snell had been paid the statutory rate for her shared parental leave then there would have been no argument about the inequality of treatment. I also believe that, under current rules, Network rail could have continued to pay enhanced maternity pay, as long as the shared parental pay was the same between men and women. It may be that this changes in the future as cases or legislation develop.
One of my criticisms of the shared parental leave provisions was that in many cases it is not financially viable for fathers to take advantage of shared parental leave. Some employers, particularly the larger companies, offer employees enhanced maternity pay, but do not include the same provision in their shared parental leave policy, meaning that for many families they are better off financially if the mother takes maternity leave.
1) Check your own policies and procedures to ensure that there is equality between men and women;
2) Review your maternity and shared parental leave policies and what you pay staff;
3) If you have any questions about your own policies and potential risks, please let me know and we can discuss your particular circumstances;
4) If you do not have procedures or policies in place, please get in touch and I would be happy to help you.
Alison@realemploymentlawadvice.co.uk or 023 8098 2006 or 01983 897003.