Ever since good old shared parental leave was introduced back in 2015 there has been a bit of a question mark surrounding pay. Not what the pay should be, that’s quite clear; employees are entitled to the same statutory pay rate as those on maternity leave. This equates to 6 weeks at 90% of their average weekly pay followed by the statutory base rate (which has just increased to £145.18) for 33 weeks. No, the pay issues relate to when a company offers an enhanced maternity pay package but the same is not offered for shared parental leave.
The issue was not something which was addressed when the legislation was rolled out back in April 2015, however it was indeed something that was hotly debated. Is it fair to pay more for a woman taking maternity leave than for her partner taking the same amount of shared parental leave? Whilst not always the case, on the most part those taking up shared parental leave would be men – does this mean that paying them less would be classed as sex discrimination?
Because shared parental leave was new, there was no case law (i.e. nobody had been angry enough about the whole shebang to take it to an employment tribunal) to seek guidance from. Until now that is.
Turns out that recently someone did get angry enough about this issue to take it to an Employment Tribunal. Mr Ali worked for Capita Management Ltd. Under his company’s maternity policy, employees were entitled to 14 weeks enhanced maternity pay. However, upon Mr Ali’s request to take shared parental leave, he was informed that the company policy on this merely offered pay at the statutory rate. Mr Ali had beef with this.
Taking things to court
After going down the grievance route to no avail, Mr Ali took matters further and brought a claim for direct sex discrimination at an Employment Tribunal. The matter was considered and the tribunal concluded the role of caring for a child is not a role exclusive to the mother and therefore paid leave for this should not be treated as such. They found that it had been unfair to offer Mr Ali less money compared to a female on maternity leave, and they upheld his view that he had been treated less favourably.
So yeah, sex discrimination.
However before Mr Ali could celebrate with a cup of tepid tea and an all night session placating the baby, his company, Capita, launched an appeal. Employment tribunal appeals are heard by what is known as the Employment Appeal Tribunal (I know right, they could have come up with something slightly more imaginative). After further debate the EAT (at least the acronym has a better ring to it eh?) overturned the original decision and ruled in favour of Capita.
Firstly they stated that the original tribunal’s decision was based on their conclusion that the purpose of paid maternity leave is to care for a child. The EAT made reference to the Pregnant Worker’s Directive (an EU Directive introduced in 1992), which was designed to improve safety and health of women who had just given birth or who were breastfeeding. They noted that this directive outlined the right for women to have at least 14 weeks consecutive maternity leave and pay and that these 14 weeks actually coincided with the 14 weeks enhanced pay that Mr Ali’s company offered. (Jeez I’m not sure if I wrote 14 enough in that sentence – clearly I’ve written it again just in case…)
The EAT found that Capita’s maternity policy had incorporated these timeframes in accordance with the Pregnant Workers Directive so as to ensure the health of the mother. Equally they noted that on the other hand, shared parental leave was designed to help with ‘care of the child’ – this being purely a domestic concept, unrelated to the health of the mother.
Therefore, the initial decision was overturned and it was decided that in fact it was not sex discrimination for Capita to pay a different rate for shared parental leave over maternity leave as the two policies had different objectives.
Lets be honest – it seems like they got off on a bit of a loop hole there doesn’t it? (and I bet Capita were breathing a sigh of relief that this case came pre Brexit eh?)
What this means
This is the very first case of its nature so by default it should have some impact on how employers manage shared parental pay. Your employer now is within their right to offer different pay rates for maternity and shared parental leave, without fear of a discrimination claim. Ok so this might be great for you employer, in that they don’t have to worry about forking out any enhanced payments to those wishing to take up shared parental leave, but what it also does, is keep SPL an unrealistic option for many families.
That being said, the specifics of this case were just that: specific. Capita’s enhanced pay coincided with the 14 weeks maternity leave period guaranteed by the Pregnant Workers Directive. The EAT noted that the ruling might have been different had the organisation provided a more generous enhanced package.
Looks like the door is still open then?
What do you think? Do you think that different pay rates for shared parental leave and maternity leave are discriminatory?