Unequal pay during shared parental leave

11 October 2016

11 October 2016

With thanks to the CIPD for their article which explains how in the first employment tribunal case to address a discrimination complaint over shared parental leave (SPL), a father has been awarded almost £30,000 after his employer refused to pay his shared parental leave at the same rate as his wife who was employed by the same company.

Under the shared parental leave rules (available to parents of children born on or after 5 April 2015) parents can share up to 50 weeks’ leave and 37 weeks’ statutory pay in the first year of their child’s life. In order to take SPL, the mother must bring her maternity leave to an end and convert it to SPL, which can then be taken by either parent. Employers can pay statutory shared parental pay or choose to enhance their scheme with more generous payments.

Under the Equality Act 2010, it is direct discrimination for an employer to discriminate against an employee because of his or her gender. It is also unlawful for an employer to apply a ‘provision, criterion or practice’ (PCP) which appears to be neutral, but which actually puts those that share a characteristic protected by the Act (such as gender) at a particular disadvantage. This is ‘indirect discrimination’. Unlike direct discrimination, indirect discrimination can potentially be objectively justified by an employer.

In the case, Snell v Network Rail, both the claimant and his wife were employed by Network Rail. The company’s family friendly policy provided for mothers to be paid at an enhanced rate during SPL but restricted pay for partners taking SPL to the statutory rate.

Snell and his wife planned to share their early childcare responsibilities and both applied for SPL. Snell’s wife intended to take 27 weeks’ leave and he initially intended to take 12 weeks’ leave (which he planned to extend later). When he applied for the leave, he discovered that while his wife would receive full pay during SPL, as her partner, he would be paid at the statutory rate only. He raised a grievance on the basis the policy discriminated against him because of his gender.

The employer rejected his grievance on the basis that it was not discriminating against him because of his sex as it would apply the policy in exactly the same way to the female partner of a mother. The employer also said the policy was intended to support the recruitment and retention of female staff and was therefore objectively justifiable. Snell claimed direct and indirect discrimination.

Tribunal

By the time the case got to an employment tribunal hearing, Snell had abandoned his direct discrimination claim and the company had conceded the claim of indirect discrimination, so the tribunal only had to decide the level of compensation. The tribunal agreed that a SPL policy that disadvantages partners (who are more likely than not to be men) by paying them at a less favourable rate than the mother of a child is indirectly discriminatory.

Snell was awarded substantial damages for injury to feelings arising from discrimination and future financial loss.