The introduction of shared parental leave was designed to give parents greater flexibility in caring for their child during the first twelve months. Parents could choose to take time off together, or separately by alternating responsibility for being the child’s primary carer.
Shared parental leave is remunerated by means of a statutory weekly rate of pay, (like statutory maternity pay). Many employers offer enhanced rates of maternity pay (to encourage female employees back to work following maternity leave) and paternity pay. However, the option of enhanced shared parental pay, which is a relatively new phenomenon, is less well established.
Is it discriminatory to offer female employees the option of, say, 14 weeks enhanced maternity leave whilst only offering new father’s two weeks’ paternity leave on full pay? This was the question asked by Mr Ali in the case of Ali –v- Capita Customer Management Limited.
Mr Ali worked for Capita Customer Management Limited. When his wife gave birth, she was diagnosed with post-natal depression and advised by her doctor to return to work in order to aid her recovery. Mr Ali took two weeks paternity leave, for which he received full pay, followed by a number of weeks’ annual leave. On his return to work, he contacted HR and was informed that, although he could take shared parental leave, this would be paid at the statutory rate of pay rather than an enhanced rate.
Mr Ali brought a claim of direct sex discrimination in an employment tribunal on the grounds that male employees on shared paternity leave should be given the same right to enhanced pay as employees on maternity leave. By failing to do this, Mr Ali argued, Capita was effectively removing a couple’s choice as to who should care for the baby, and implicitly suggesting that a man should get less pay than a woman for carrying out the same role.
The employment tribunal upheld Mr Ali’s claim for sex discrimination. It concluded that the role of primary carer should be made free of “generalised assumptions” as to who is best placed to undertake the primary caring role, and it should be for the parents to choose who was best placed to fulfil this role. In this case, Mr Ali was best placed to act as the primary carer due to his wife’s post-natal depression.
As with all cases, the above was decided on its own facts and it is not correct to suggest that, on the basis of this case, all employers who pay enhanced maternity pay should now pay enhanced shared parental pay as well. In fact other cases on this point have reached different conclusions. For example, in the case of Hextall v Chief Constable of Leicestershire Police, the employment tribunal concluded that paying full pay to mothers on maternity leave but only statutory shared parental pay to their partners was not discriminatory.
Companies are advised to review their policies on maternity, paternity and shared parental leave to consider whether or not they wish to provide enhanced payments and, if so, what qualifying criteria should be met. As seen above, applying policies differently will, potentially, leave the company open to arguments of discrimination. It is, therefore, important that the rationale is recorded so that it can be understood if challenged.
If you have any questions about the above article, or maternity, paternity or shared parental leave or, indeed, any aspect of employment law, please do not hesitate to contact Debbie Sadler at email@example.com or 0118 957 5337.
Published on 23/06/2017