There has been a lot of commentary over recent weeks about an Employment Tribunal decision which held that a failure to pay a male employee enhanced shared parental pay, where an employer offered enhanced maternity pay, amounted to direct sex discrimination. So, should organisations be rushing to review and make changes to their shared parental leave policies, or is it sensible to adopt a 'wait and see' approach?
First, it is helpful to understand the facts of the case. The employer's policy was to pay 14 weeks' full pay to women on maternity leave. The male employee wanted to take shared parental leave to care for his child so that the mother could return to work on medical advice. The male employee was entitled to two weeks' paternity leave at full pay but the following 12 weeks of shared parental leave were paid at the statutory rate only.
The Tribunal took the view that the male employee could compare himself to a female employee on maternity leave. It commented that, after the compulsory two week maternity period, both men and women are in a comparable position with regards taking leave to care for a new-born baby and in the modern workplace, there is no reason why it should be the mother who takes leave. Therefore, failing to pay full pay to the male employee taking shared parental leave in the same way as the mother on maternity leave was less favourable treatment because of his sex.
Clearly this decision will be of concern to organisations that do not currently match maternity and shared parental pay policies. However, it is important to bear in mind that:
• Whilst this case may give an idea of the direction of travel on this issue, it is only a first instance decision and therefore not binding on another Tribunal;
• This case unfortunately doesn't make the legal position any clearer – there is another conflicting Employment Tribunal decision which found the opposite i.e. that it was not discriminatory to give full pay to mothers on maternity leave but only shared parental pay at the statutory rate. Clarity from a higher court is therefore needed on this issue; and
• There is currently no statutory requirement for businesses to match maternity and shared parental pay policies and neither does the Government consider it a requirement for businesses to do so.
Both of the Employment Tribunal decisions mentioned above are being appealed. Many organisations have therefore decided to await clarity from the Employment Appeal Tribunal on this issue before making any policy changes, and are adopting a "wait and see" approach. However, if you are faced in the meantime with a request for shared parental leave and/or a grievance for shared parental pay to match any enhancement made to maternity pay, please do let any of the team know and we would be happy to advise you on the best way to handle it.