To pay or not to pay?

A recent tribunal decision has suggested that employers who provide enhanced maternity pay for women, but not for men on shared parental leave, could find themselves accused of direct sex discrimination.

Introduction of Shared Parental Leave 

Society’s encouragement of fathers taking a greater role in childcare was put on a statutory footing in 2015. The concept of shared parental leave (SPL) was introduced and fathers are now permitted to share maternity leave with their partners, up to 50 weeks.

When SPL was introduced, some employers instantly introduced enhanced SPL pay, while many adopted a “wait and see” approach as to whether they would be obliged to also pay enhanced SPL.

Last year those employers breathed a sigh of relief. In Hextall v Chief Constable of Leicestershire Police, a tribunal held that failing to offer enhanced SPL pay was not discriminatory.  This was on the basis that paying enhanced maternity pay constituted special treatment afforded to a woman in connection with pregnancy or childbirth. Accordingly, the difference in treatment was permitted by legislation.

The tribunal commented that the difference in treatment was necessary as women do suffer disadvantages in work connected with pregnancy and maternity, leading to inequalities between men and women.

It concluded that there was no valid comparison between a man on SPL and a woman on maternity leave; the correct comparator was a woman on SPL.

What has changed?

However, that was not the end of the story. A different tribunal has recently disagreed with Hextall, finding that the male claimant had been directly discriminated against on the grounds of his sex.

In Ali v Capita Customer Management Ltd, Mr Ali wanted to take SPL when his wife went back to work. However, he was told that he would only receive statutory pay for his SPL. This was despite the fact that women on maternity leave at the company received enhanced maternity pay of 14 weeks’ basic pay. He was therefore deterred from taking SPL. He complained to the tribunal.

The tribunal held that Mr Ali had received less favourable treatment on the grounds of his sex when compared to a female employee taking maternity leave to care for a newborn. The tribunal felt that there should be no distinction between fathers and mothers wanting to take the time off to care for their new baby.

A point to note: this does not apply to the two weeks’ compulsory maternity leave after the birth, where it is more likely that preferential treatment of mothers would be permitted.

What this means for employers  

This latest case will sound an alarm for employers with policies which treat women and men taking time off to care for babies differently. However, since this decision is at employment tribunal level only, there is no current obligation for employers to change their family leave policies, unless they want to be particularly cautious.

Both the Hextall and the Ali cases have been appealed, so we will keep you posted as further clarification of the law emerges.

 

Please get in touch if you would like to discuss any issues.