Papa don’t breach… (The Equality Act) Shared Parental Leave and enhanced maternity pay

Shared Parental Leave (“SPL”) was one of the significant employment law developments when it was introduced back in April 2015 (can you believe these regulations are more than 3 years old already?)

As a very brief recap, the legislation allows mothers and fathers (and all sorts of variations of partners, civil partners, adoptive parents etc) to “share” the traditional 12 months’ maternity leave available to mothers. There are various complicated rules about eligibility and notice requirements but it is not the purpose of this note to go into all of that.

I’m unsure how popular the uptake of shared parental leave has actually been. Certainly, as a legal advisor, I can count on one hand the number of queries I have had about these regulations in the last 3 years. Contrast that to queries about maternity regulations which are very regular.

One of the main issues which were being forecast as a “pitfall” with these regulations was the scenario where a female working for employer X was entitled to enhanced maternity pay when on maternity leave. A man opting to use some SPL, however, was only paid the statutory pay by the same employer X. Was such a disparity in treatment discriminatory? The woman is on leave caring for the child but gets paid more than a man doing the same thing.

Early case law suggested that an employer engaging in much less favourable treatment would require justifying this on objective grounds. For example, in one case, car manufacturers, Ford, managed to justify the enhanced pay for women on the basis that their industry was male-dominated and they needed to attract more females to work. This case pre-dated the SPL Regulations, but concerned additional paternity leave.The legal principles are the same.

The recent judgment of the Employment Appeal Tribunal in Capita v Ali will be music to the ears of those employers who operate a system of enhanced maternity pay which is not mirrored for men who take SPL. Mr Ali lost his case of discrimination on the basis that the purpose behind SPL is different to the purpose of maternity leave. Maternity leave is to protect the health and welling of the mother after birth. The EAT said that a father’s situation when taking SPL is not comparable.

This case suggests that employers can pay different levels of pay when employees are using their SPL.

If in doubt, take advice.

And Keep your ears to the ground in case of a further appeal. A judgment is pending from the Employment Appeal Tribunal in the similar case of Hextall v Leicestershire Police. It will be interesting to see if this case goes the same way.

For more information and advice on shared parental leave please contact the Blackadders Employment team.