When the Shared Parental Leave legislation was introduced I predicted that it wouldn’t be long before male employees were arguing sex discrimination.
In 2015 in a Police case the Employment Tribunal decided it wasn’t discriminatory to offer enhanced maternity pay to mothers but only pay statutory shared parental pay to fathers on the basis that there wasn’t a valid comparison between a man on shared parental leave and a woman on maternity leave. They found that the correct comparator was a woman on shared parental leave being compared with a man on shared parental leave in which case both would get the same statutory pay. That analysis treats somebody on maternity leave as being under the special circumstances attached to maternity leave and that only a woman can be pregnant or take that maternity leave and gives them special protection accordingly.
In the most recent case involving Capita the employee had TUPE transferred across. Female colleagues were entitled to 14 weeks’ basic pay so an enhanced rate compared to statutory but male colleagues were entitled to two weeks’ ordinary paternity leave paid at the normal rate and then additional paternity leave. A male employee argued paying him statutory only deterred him from taking the shared parental leave. Capita ran the argument that only females have the right to maternity leave as in the Police case above because of the special circumstances attaching to pregnancy.
The tribunal found that the employee could compare himself with a hypothetical female colleague taking leave to care for her child after the two week compulsory maternity leave period (obviously this increases to four weeks in factories), that the denial of full pay to him amounted to less favourable treatment and that the reason for this was his sex and that the Equality Act didn’t prevent comparison with such a hypothetical female colleague. It’s worth noting that the tribunal found that caring for a baby after the first couple of weeks is not a role exclusive to the mother particularly given that since 2016 men are being encouraged to play a greater role in caring for their children. They found that the enhanced maternity pay was not special treatment in connection with pregnancy and childbirth but it was about special treatment for caring for a new-born baby.
During this the tribunal were seeking to avoid any generalised assumption that mother is best to care for baby and the discriminatory assumptions that they should be paid differently because of an assumed exclusivity. The argument that had been raised in the Police case about who the correct comparator was i.e. arguing that you should compare somebody on shared parental leave with an employee of the opposite sex also on shared parental leave was not made in this case.
Both of these cases are being appealed so it’s going to give the Court of Appeal a welcome opportunity to clarify which one of the two approaches is the correct one. Until then you may decide to take the risk and not change your policies but you also need to consider the message being sent you your employees. If men are starting to feel disadvantaged and that there should be greater equality around parental leave perhaps it’s time to think about how we encourage and support all parenting? After all, it will only be when we do that that more men avail themselves of the opportunities to take time out of their careers. My belief is that it is only when enough men do this in large numbers that some of the cultural norms around career breaks will be challenged.