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The Glasgow Employment Tribunal has this month made a finding of indirect sex discrimination and awarded almost £30,000 to a male employee after his employers refused to pay him the same as his wife during their shared parental leave.

The ‘Shared Parental Leave’ scheme allows employees who are parents to share leave in the first year of their child’s life, or in the first year after a child is placed with them for adoption. Shared parental leave is in addition to rights to maternity, adoption and paternity leave.

Those who are eligible for shared leave will also be eligible for Shared Parental Pay for up to 39 weeks.

David Snell and his wife, both employed by Network Rail, took shared parental leave following the birth of their child in January this year. But while Mrs Snell was to benefit from full pay for six months under Network’ Rail’s policy, Mr Snell was only to receive statutory parental pay of £139.58 per week when taking his leave. Mr Snell raised a grievance with his employers, which set out: “under this policy, payments to mothers on shared parental leave will be at significantly different rates to fathers, i.e. 26 weeks’ full pay and 13 weeks’ statutory compared with 39 weeks’ statutory for fathers. As a result of this, I believe I am being discriminated against because of my sex.” After Network Rail rejected the grievance, Mr Snell lodged a claim of both direct and indirect sex discrimination claim at the employment tribunal.

This is not the first time the issue of discrimination and shared parental pay has been raised at the employment tribunal in recent years. In Shuter v Ford Motor Company, a father whose employer refused to provide enhanced additional paternity pay (note: additional paternity leave is no longer available and was replaced by the shared parental leave scheme) while providing enhanced maternity pay claimed direct and/or indirect sex discrimination. The direct discrimination argument failed in that case on the basis that the position of a father in receipt of additional paternity pay was not found to be comparable with that of a mother or primary carer receiving enhanced maternity pay. The correct comparison would be with a female partner of the mother who would have been treated no less favourably.

On the question of indirect discrimination, it was however accepted by Ford that men and Mr Shuter in particular were put at a particular disadvantage by the policy. The tribunal then had to decide whether Ford could justify its policy. The tribunal accepted that Ford’s aim in paying full basic pay to women on maternity leave was to recruit and retain women in its male-dominated workforce and concluded that this aim was being successfully achieved by the enhanced maternity package, as demonstrated and supported by documentary evidence going back a number of years. On that basis the indirect discrimination argument was also resisted by the employer.

In contrast while Network Rail initially took precisely the same defence to the indirect discrimination argument it eventually conceded this point on the basis that it understood that that Mr Snell had given up on the direct discrimination argument. This means that the Tribunal focussed solely on compensation for indirect discrimination and did not examine the indirect sex discrimination arguments on the merits.

Crucially however in advance of the hearing Network Rail changed its policy in an apparent attempt to undermine the value of  Mr Snell’s claim whereby under new arrangements a mother’s pay during periods of shared parental leave would be reduced to the minimum statutory shared parental pay. The Tribunal however went on to award compensation to Mr Snell on the basis of the original scheme because it was not persuaded that the changed arrangements were applicable to an application for shared parental leave made under the old policy.

A victory then for Mr Snell but perhaps a hollow or even a pyrrhic one for employees in general. Although clearly making sense from a cost perspective, the case and the employer’s approach may serve to undermine the progressive policy intentions of the legislation. While it will still be open to employers, as in the Shuter case, to argue that a shared parental leave policy which involves differential treatment as between men and women is justified, if the general response to challenge is to level down shared parental pay provisions to the statutory minimum then employees of both genders will inevitably lose out and have no legal remedy.

Moreover given the established evidence that broader disadvantage to women in the workplace stems from their shouldering the vast majority of the burden of childcare (the “motherhood penalty”) then such approaches are likely to compound that state of affairs. Shared parental leave is designed to enable working parents to share leave and to take time off work in a more flexible way The Government has however estimated that only 2% to 8% of those eligible will actually take up the opportunity. The reality is, of course, that if it does not make sense financially for fathers to take shared parental leave, they will be far less likely to do so.  While employers may legitimately take into account the costs of enhanced provision and the risks of providing this on a differential basis they may also wish to consider the broader impact of levelling down provision for enhanced shared parental pay in terms of the implications for equal opportunities and attraction and retention of the best talent - of either gender.

If you would like advice in relation to the above, or if you wish to adopt or amend a policy setting out arrangements for shared parental leave and pay, please do not hesitate to contact a member of the Employment Team.

 Eric Gilligan, Partner and Rowan Alexander, Solicitor

Chambers UK 2018

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