Do you have to pay enhanced shared parental leave pay if you pay enhanced maternity pay?
There has been a recent decision in the Employment Tribunal regarding the application of shared parental pay.
You may recall I reported on the first case in this area regarding a couple who both worked for the same employer, Network Rail, and who decided to take shared parental leave. The mother, Mrs Snell received enhanced pay when she took parental leave but the father, Mr Snell only received statutory pay. Mr Snell was successful in his claim for discrimination.
You can read the full details of that case here
This recent case decided by the Leeds Employment Tribunal is different in that the employee Mr Ali is comparing himself to a woman on maternity leave, whereas in the Snell v Network Rail case it was a man on shared parental leave comparing himself to a woman on shared parental leave.
Parents have the option of dividing leave after the birth of their child by taking shared parental leave. It basically means that the mother gives up her right to maternity leave and her and a partner can share the leave or the partner can take all the leave (save for the first 2 weeks after childbirth which are compulsory for the mother to take).
Direct sex discrimination occurs where, because of sex, a person (A) treats another (B) less favourably than A treats or would treat others.
Indirect sex discrimination arises where an employer applies a provision, criterion or practice which has the effect of disadvantaging employees or job applicants of one sex against another.
Mr Ali was employed as a Business Customer Adviser by Capita Customer Management Limited (the ‘Employer’). Mr Ali’s employment had transferred to the Employer under TUPE regulations in 2013 from Telefonica. In total, he had been employed for 12 years.
On 5th February 2016 Mr Ali’s wife gave birth to a daughter and he took 2 weeks paid paternity leave followed by annual leave and an agreed weeks’ paid leave. During this time Mr Ali’s wife was diagnosed with post-natal depression and he notified his manager of her diagnosis.
On the 7th March 2016 Mr Ali returned to work. He was understandably concerned about his wife and baby at home, and his wife had been advised to return to work to assist in her recovery. Mr Ali informed his manager of his concerns and she sought advice from senior management.
In a meeting with management Mr Ali was informed that he could take shared parental leave but it would be on statutory pay only. This would cause significant financial difficulty for Mr Ali.
Mr Ali was informed by a colleague that under the Telefonica policies women were entitled to 14 weeks full pay for maternity. Mr Ali argued that he should be entitled to the same.
Despite assistance from his union and raising a formal grievance the Employer refused to agree to pay Mr Ali the same amount for shared parental leave that his female colleagues would receive for maternity leave.
Mr Ali made a claim in the Employment Tribunal for direct and indirect sex discrimination and victimisation.
The Employer argued against Mr Ali’s claim on the basis that there was not a valid comparison between maternity and shared parental leave as maternity rights were only available to female employees because they have given birth. Men and women who took shared parental leave received the same amount and that was the correct comparison.
They also argued that special treatment was afforded to women to ensure that they were not disadvantaged by giving birth and taking maternity leave.
The Leeds Employment Tribunal decided in Mr Ali’s favour and his claims for sex discrimination and some of his claims of victimisation succeeded. With regards to his claim for indirect discrimination this was rejected.
The Employment Tribunal was satisfied that under the Equality Act 2010 Mr Ali could compare himself with a hypothetical female colleague. Mr Ali was taking on a child caring role and this was the same as a female employee.
The purpose of providing enhanced pay under the Telefonica policy was to assist female employees in that time to care for their new born child, which is what Mr Ali had wanted to do.
Points to note
When shared parental leave was introduced I noted to clients that providing enhanced maternity pay and not enhanced shared parental pay could potentially cause difficulty, for the reasons outlined by this case, and most practitioners also commented that there was likely to be litigation on this subject.
It is an interesting decision and of course as this is only an Employment Tribunal decision it is not binding on other Employment Tribunals. It should however be noted that this case and another case, which was decided differently on this issue, Hextall v Chief Constable of Leicestershire Police, are being appealed so we should have a binding authority on this point, which employers can rely upon, in the near future.
It will be interesting to see whether the Employment Appeal Tribunal take the same view as the Employment Tribunal in this case or if they take the traditionally held view (as in the Hextall case) that you cannot compare between a woman taking maternity leave and a man taking shared parental leave.
I believe that the low take up by fathers of the right to take shared parental leave is as a result of the financial strain that this could cause, as most employers do not offer enhanced shared parental leave in the same way that they do for maternity leave.
Action to Take
1) Check what your policies and contracts say about enhanced pay;
2) Don’t rush to make changes as a result of this case I will keep you updated by the blog when the cases reach appeal, you can sign up for my newsletter below to get all the details to your inbox;
3) Consider why you provide enhanced pay (if you do) or if this is something that you want to add to the package of benefits for your employees;
4) Seek some advice on what works best for your business and the best practice position.
Mr M Ali v Capita Customer Management Limited – Leeds Employment Tribunal
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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.