REWARD INSIGHT
Danny Done, managing director at Portfolio Payroll, discusses the implications of a recent case involving contractual provisions Shared parental pay discrimination
A lmost two years on from the introduction of shared parental leave, the first Employment Tribunal case has been heard on the issue. It delved immediately into the significant issues of potentially discriminatory practices involved in the pay element connected with the taking of shared parental leave. It provides employers with a useful insight into the practical aspect of payment but may also mean that some need to review their current arrangements to identify areas of legal challenge. Mr Snell and his partner both worked for national rail infrastructure company, Network Rail. After they had a baby, they decided to opt into the shared parental leave system, meaning that they would be able to take more control over when, and for how long, each of them took time off in the first twelve months of the baby’s life to provide its care. Shared parental leave allows mothers and their partners to be off work at the same time for prolonged periods if they choose: something that the existing maternity and paternity leave system does not allow. Network Rail ran a shared parental leave and pay policy which provided that mothers would receive a pay level during leave which was much higher than the statutory amount; she would receive full pay for six months. However, the policy did not offer the same level of enhancement to mothers’ partners who would only receive pay at the statutory minimum for the entire length of their leave (currently £139.58 per week). Mr Snell complained to an Employment Tribunal that the disparity in shared parental pay provided by his employer was discriminatory towards him because he was a man. The claim was one of indirect sex discrimination which was based on
the fact that Network Rail’s practice of paying mothers’ partners a lesser amount than mothers on shared parental leave disproportionately disadvantaged him as a man. Mothers’ partners can be both male and female and so both sexes would receive the lower rate when on shared parental leave; however, he contended that because the majority of mother’s partners are male, they are disadvantaged more significantly than female partners. The Employment Tribunal agreed with Mr Snell. It decided that, when compared with the treatment of a woman during shared parental leave, Mr Snell, as a man, would be disproportionately disadvantaged and therefore he had been discriminated against. ...an act of sex discrimination to fail to provide it to men on shared parental leave too Indirect discrimination is often unintentional because employers have not adequately thought through the potential consequences that an apparently neutral rule has on all its employees. A principle of special protection for women who have had a baby exists as a result of their biological position as the mother and this can justify different treatment and different pay. It is because of this reason that it has not historically been seen as an act of sex discrimination to offer enhanced maternity pay to women who are on maternity leave, but not to offer enhanced paternity pay to their partners who are on paternity leave. However, this concept of special
protection does not easily attach itself to shared parental leave because, under this scheme, the mother is giving up her right to time off and transferring it to her partner. When leave is taken in this way, it is arguably no longer given as special treatment for women and so to maintain a higher rate of pay for women would not seem appropriate. The special treatment concept does not mean that employers cannot offer women on shared parental leave enhanced pay if they wish by way of alignment with an enhanced maternity pay policy that they provide. However, where enhanced shared parental pay is provided to women, this case confirms that it may well be an act of sex discrimination to fail to provide it to men on shared parental leave too. In any event, guidance produced by the Government on shared parental leave and pay states that it could be a case of discrimination if an occupational pay scheme is offered by an employer to mothers whilst on shared parental leave, but is not also offered to fathers, or mothers’ partners. Employers who currently operate shared parental pay schemes in this way may want to consider either increasing pay for partners to the same level of enhanced pay as mothers, or reducing pay for mothers to statutory level. A reduction in pay would of course be a change to terms and conditions and therefore employers should take specific advice on this before acting. It is important to understand that this decision is not unique to a situation where both the mother and her partner work for the same employer. Employers must also remember that shared parental leave is due to be extended to working grandparents in 2018. n
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| Professional in Payroll, Pensions and Reward | March 2017 | Issue 28
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