Are Men Being Discriminated Against For Taking Shared Parental Leave?

Employees may be entitled to receive Shared Parental Leave (and Statutory Shared Parental Pay) if they have recently had a baby or adopted a child.

Employees can begin Shared Parental Leave as long as they are eligible and they or their partner end their Maternity or Adoption Leave early. The remaining leave would then be available as Shared Parental Leave.

Shared Parental Leave can give parents more flexibility in how they share the care of their child in the first year following birth or adoption.

Parents are entitled to share up to a maximum of fifty weeks of leave and up to a maximum of thirty-seven weeks of pay. They can also choose to take the leave and pay in a more flexible way, such as each parent taking up to three blocks of leave, rather than in one full block.

Eligible parents can be off work together for up to six months or alternatively stagger their leave and pay so that one of them is always at home with their baby in the first year.

Discrimination Against Men?

In May 2018, two decisions were made by the Employment Appeal Tribunal on the question of whether a man taking Shared Parental Leave is entitled to the same rate of pay as a female employee taking Maternity Leave.

Case One – Hextall v Chief Constanble of Leicestershire Police (1) and Working Families (Intervenor) (2)

Leicestershire Police paid eighteen weeks’ Enhanced Maternity Pay to mothers who were on Maternity Leave. However, they only paid Statutory Pay to those parents who chose to take Shared Parental Leave.

Mr Hextall took fourteen weeks Shared Parental Leave. If he had been a woman on Maternity Leave during that same period, he would have been entitled to receive full pay.

Mr Hextall claimed that this amounted to both direct and indirect sex discrimination.

The Employment Tribunal made the decision that it was neither direct nor indirect sex discrimination. Mr Hestall appealed the finding of indirect sex discrimination at the Employment Appeal Tribunal.

Indirect discrimination is when a practice, policy or rule applies to everyone in the same way but has a worse effect on some people than others. The Equality Act says it puts a person at a particular disadvantage.

Unlike direct discrimination, it is possible for an employer to justify indirect discrimination.

In the above case, the practice was that Leicestershire Police only paid Statutory Pay to parents who took Shared Parental Leave. The Employment Tribunal held that this practice did not put men at a disadvantage because the same amount was paid to men and women who took Shared Parental Leave. The Employment Tribunal felt that Mr Hextall’s true case was that men were not disadvantaged by the practice but instead were disadvantaged by the fact that they cannot get pregnant (and this is not something that was capable of being indirect sex discrimination).

Case Two – Capita Customer Management Ltd v Ali and Another

In this case, Mr Ali argued that Capita’s practice to pay Shared Parental Leave at the Statutory rate amounted to direct sex discrimination.

Mr Ali compared himself to a woman who was on Maternity Leave and who would receive Enhanced Maternity Pay.

He also alleged that this was an act of indirect sex discrimination because it was a practice which was more likely to disadvantage men than women.

The Employment Tribunal found in favour of Mr Ali and confirmed his claim of direct discrimination. This was on the basis that Mr Ali could compare himself to a hypothetical female employee taking leave to care for her child after the two-week compulsory Maternity Leave period.

Mr Ali’s indirect discrimination claim was dismissed.

Capita appealed to the Employment Appeal Tribunal, which the Employment Appeal Tribunal upheld.

They found that Mr Ali had not been discriminated against and, also noted that the primary purpose of the European Union Parental Leave Directive, which is the basis for Shared Parental Leave, is the care of a child, whereas, the Pregnant Workers Directive is on the basis that paid Maternity Leave provisions promotes of the health and well-being of the mother.

Accordingly, the Employment Appeal Tribunal found that Mr Ali could not compare himself to a woman in the first twenty-six weeks’ of Maternity Leave and the correct comparator was a woman on Shared Parental Leave, who would then also receive the same pay as a man.

Court of Appeal Rulings

On 28th May 2019, the Court of Appeal made a ruling that it is not discriminatory for employers to pay Enhanced Maternity Pay but only pay Statutory Pay for staff who choose to take Shared Parental Leave.

In this latest stage of the ongoing Court battles between Mr Hextall and Leicestershire Police and Mr Ali and Capita, the Court upheld the ruling that both Leicestershire Police and Capita were indeed allowed to offer Enhanced Maternity Pay without having to provide the same benefits for staff on Shared Parental Leave.

The Judges decided that the main purpose of Maternity Leave is for the mother to recover from giving birth and not about childcare. This need is not shared by the mother’s partner and, as such, it is not discriminatory to offer more generous Maternity Leave.

The Court also decided that there was no case for equal pay because the law gives employers the option to make exceptions for those female employees who are pregnant, who have recently given birth or who are breastfeeding.

Conclusion

This Court of Appeal ruling will be seen as a positive step for employers. An opposite ruling could well have seen a lot of employers pulling their Enhanced Maternity Packages, and thus, denying women the protection which Maternity Leave offers them.

Employers should remember that this Law only states the minimum pay and not a maximum. So if an employer would like to pay more money to fathers on Shared Parental Leave they can do so. This will help employers to be more attractive and competitive.

For more information or help with Employment Law.

Please contact us at http://www.orchardemploymentlaw.uk/contact

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