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May 17, 2018

Sex Discrimination: Should a Man on Shared Parental Leave be Entitled to the Same Rate of Pay as a Woman on Maternity Leave?

In a second case coming before the Employment Tribunal to challenge the new Shared Parental Leave (SPL), a police officer has tested whether such a policy amounts to indirect discrimination against fathers when the employer has an enhanced Maternity Leave (ML) package.

In essence, the case asks whether it is sex discrimination to not pay a man on SPL the same as a woman on ML.

The devil (as ever) is in the detail, and comes down to who would be the correct ‘pool’ to compare the man with to assess whether indirect discrimination has taken place.

As a reminder:

Indirect discrimination is not as obvious as direct and can be unintentional. It occurs when an organisation has a policy, requirement or practice that appears to apply to all, but its effect in practice disadvantages a particular group of people with a protected characteristic.

Background

There was no dispute in the facts of this case.

The claimant is a serving male police officer in Leicester Police, while his wife runs her own business. He claimed indirect sex discrimination under employment provisions of Leicester Police, because the only option for men taking leave after the birth of their child is Shared Parental Leave at the statutory rate of pay while women also have the option of taking Maternity Leave on full pay.

The initial Employment Tribunal

In the first instance, the Tribunal dismissed the claim on the basis that it did not agree that a woman on Maternity Leave getting enhanced maternity pay is a valid comparator for a man on Shared Parental Leave getting shared parental leave pay because the relevant Policy, Criterion or Practice (PCP) did not put men at a particular disadvantage when compared with women.

Employment Appeal Tribunal

The claimant appealed this finding, and following a hearing in April 2018 the Employment Appeal Tribunal allowed the appeal.

It said the Tribunal was wrong for rejecting women on Maternity Leave as a comparator for a direct discrimination claim for the purposes of the indirect discrimination claim.

It stated that the identifying of a pool for testing a disadvantageous impact of a PCP on men and women in materially indistinguishable circumstances is a different exercise from that in a direct discrimination claim. Furthermore, the Tribunal was wrong as it had failed to base their decision on the disparate impact relied upon.

In essence, while women on ML are not a valid comparison for a direct discrimination claim they are for an indirect discrimination claim because fathers have no choice but to take SPL at the statutory rate of pay whereas mothers have the option of ML at full pay.

For the above reasons, the Employment Appeal Tribunal allowed the appeal and remitted the case to a different Tribunal for a re-hearing.

Conclusion

Although this case may not have wider implications, and nothing has been decided yet, it serves as a warning shot to those employers who currently only offer enhanced maternity pay.

Depending on the further progression of this case or others like it raising the same argument, those employers will need to consider budgeting to provide the same level of enhanced pay for fathers taking SPL, which could be significant.

Further, those employers will also have to prepare for a greater take up of Shared Paternity Leave in addition to existing/expected levels of Maternity Leave, assuming an employee’s partner’s entitlement will, in most cases, not be as generous.

If this is eventually decided again the employer, those employers currently offering enhance maternity pay may feel pressurised into removing their enhanced maternity/shared paternity pay because of cost and organisational reasons and fall back on the applicable statutory amount.

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About the author

Peter Collyer

About the author

Peter Collyer

Employment Tribunal Consultant

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