IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
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CONTENTS
CIPP foreword
3
Introduction
4 5 5 5 5 5 5 6 6
Types of leave and pay available
Statutory Sick Pay (SSP)
Statutory Maternity Pay (SMP) Statutory Paternity Pay (SPP) Statutory Adoption Pay (SAP) Shared Parental Pay (ShPP) Time off for family and dependents
Parental leave
Relevant court cases
7 7 8 9 9
Pedro Manuel Roca Álvarez v Sesa Start España ETT SA
C-D v S-T ET/2505033/11
Ali V Capita Customer Management Ltd
Hextall v Chief Constable of Leicestershire Police
CIPP research
10
Approach
10 10 10 11 11 12 12 13
Results
Gender of employees covered by this report Proportion of employees taking sick leave
Number of employees taking maternity or paternity leave Proportion of employees taking adoption leave Proportion of employees taking shared parental leave Proportion of employees taking parental leave
Conclusions
14 15 16
Appendix A: Male v female by region Appendix B: Male v female by turnover
Appendix C: Portfolio Payroll article on Statutory Shared Parental Leave (SSHPL)
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CIPP FOREWORD
To coincide with International Men’s Day on 19 November 2018, the Chartered Institute of Payroll Professionals (CIPP) conducted research to establish whether there is a ‘gender gap’ when it comes to taking statutory leave.
HELEN HARGREAVES MSc ChFCIPPdip ASSOCIATE DIRECTOR OF POLICY
International Men’s Day (http://internationalmensday.com/) was established in the UK to address issues relating to men’s mental health, including challenges
faced by men as parents, and to celebrate the positive value men bring to their families and communities. When Shared Parental Leave was introduced in 2015, it was hoped that it would tackle some of the challenges faced by men as parents, but there is still a long way to go as indicated by the results, which show that with the exception of Shared Parental Leave, women in the workplace are taking more statutory leave than men. This research uses findings from a survey representing responses from payroll professionals responsible for 20,827 workers in the UK, as well as looking at various court cases to establish whether there is a gender gap when it comes to taking statutory leave, and to explore the reasons why. Perhaps the reasons are not surprising when you consider that the introduction of maternity leave was not originally to care for the child as often thought, but instead for the mother to recover from childbirth. In Spain it was originally intended to enable breastfeeding, see Pedro Manuel Roca Alvarez v Sesa Espana EET SA on page eight. Whilst Shared Parental Leave moves us on from the original purpose of maternity leave, and fathers now have rights to Paternity Leave and Shared Parental Leave, it is still typically the mother who takes time off to care for children. Looking at the cases outlined within this paper, perhaps the reason for the low take up of statutory leave amongst men is due to financial reasons, outlining the gender pay gap and equal pay gap which is still prevalent. Perhaps the reasons are linked to ‘traditional’ views of childcare being the mother’s responsibility?
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
INTRODUCTION
Research 1 conducted on behalf of the Government Equalities Office (GEO) has prompted the GEO to conclude that significant inequalities persist in the way that childcare responsibilities are divided up and shared, with women in the UK doing on average about twice as much childcare as men. Whilst there have been no official statistics released by the government on how many parents have taken Shared Parental Leave (SPL), a freedom of information request by law firm EMW showed that just 9,200 parents shared their leave in 2017-18, only 500 more than the year before. The GEO research found that, whilst financial factors (such as childcare costs and the parents’ relative income) played a role in determining child care responsibilities, many of the parents still adopted a model where the mother stayed at home or worked part-time while the father worked full-time.
With SPL available to both parents, regardless of gender, this research is exploring whether this apparent gender bias to parental leave is also evident in other types of statutory leave and pay.
1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705898/Return_to_work-parental_decision_making.pdf
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TYPES OF LEAVE AND PAY AVAILABLE
There are several types of statutory leave and pay available to workers in the UK, every one of which, except for maternity leave and pay, are available to both genders. Statutory Sick Pay (SSP) Paid by employers to employees earning above the Lower Earnings Limit for National Insurance, if they are sick for a period longer than 4 consecutive days but less than 28 weeks. In 2018-19 the weekly SSP rate is £92.05. Statutory Maternity Pay (SMP) Paid by employers to female workers so they can take time off work both before and after a baby is born, as long as they meet the eligibility criteria for both earnings and length of employment. SMP is paid for a maximum period of 39 weeks. It is paid: ● ● for the first six weeks at 90% of the employee’s average gross weekly earnings with no upper limit ● ● for the remaining 33 weeks at the lower of either the standard rate of £145.18 (in 2018-19) or 90% of the employee’s average gross weekly earnings. Statutory Paternity Pay (SPP) Paid by employers to employees whose partner is having a baby, adopting a child or having a baby through a surrogacy arrangement. Eligible employees can choose to take either one or two weeks of paternity leave but this must be taken in one continuous block. In 2018-19 the statutory weekly rate of Paternity Pay is £145.18, or 90% of the employee’s average weekly earnings (whichever is lower). Statutory Adoption Pay (SAP) Paid by an employer to an employee who takes time off to adopt a child or have a child through a surrogacy arrangement as long as they meet the eligibility criteria for both earnings and length of employment. SMP is paid for a maximum period of 39 weeks. It is paid: ● ● for the first six weeks at 90% of the employee’s average gross weekly earnings with no upper limit ● ● for the remaining 33 weeks at the lower of either the standard rate of £145.18 (in 2018-19) or 90% of the employee’s average gross weekly earnings. Shared Parental Pay (ShPP) Employees may be able to get Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) if they’ve had a baby or adopted a child. Employees can take SPL if they and their partner meet the eligibility criteria for earnings and employment and they or their partner have ended their maternity or adoption leave or pay early. The remaining leave will be available as SPL. The remaining pay may be available as ShPP.
Employees can take SPL in up to three separate blocks. They can also share the leave with their partner if they’re also eligible. Parents can choose how much of the SPL each of them will take.
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
A mother must take a minimum of two weeks’ maternity leave following the birth (four if she works in a factory). If an employee is eligible, and they or their partner end maternity or adoption leave and pay (or Maternity Allowance) early, then they can:
● ● take the rest of the 52 weeks of leave (up to a maximum of 50 weeks) as SPL ● ● take the rest of the 39 weeks of pay (up to a maximum of 37 weeks) as ShPP
ShPP is paid at the rate of £145.18 a week or 90% of an employee’s average weekly earnings, whichever is lower. SPL and ShPP are only available in England, Scotland and Wales.
Time off for family and dependents Employees are entitled to time off to deal with an emergency involving a dependant. Employers may pay workers when they take time off to look after dependants but they don’t have to.
Employees can’t have time off if they knew about a situation beforehand. For example they wouldn’t be covered if they wanted to take their child to the hospital for an appointment, but they may get parental leave instead.
Parental leave Parental leave is unpaid. Employees are entitled to 18 weeks’ leave for each child and adopted child, up to their 18th birthday.
The limit on how much parental leave each parent can take in a year is four weeks for each child (unless the employer agrees otherwise).
Parental leave must be taken as whole weeks rather than individual days, unless the employer agrees otherwise or if the child is disabled.
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RELEVANT COURT CASES
With all types of statutory leave and pay, with the exception of maternity, being available to all workers, you might be forgiven for thinking that the number of cases of discrimination being heard by the courts would have all but disappeared. However, there are still important cases being heard which contradict this view.
The European equal treatment directive states that men and women must not be discriminated against at work on the ground of their sex. As a consequence, much of the UK laws are influenced by laws originating in the EU.
The following cases show how we have arrived at the position we have today.
Pedro Manuel Roca Álvarez v Sesa Start España ETT SA Spanish law states that women employees are entitled to time off during the working day to breastfeed a child up to the age of nine months. They are allowed to replace this right by cutting half an hour off their working day or accumulate it and roll it into whole days. Although originally introduced to facilitate breastfeeding, the time off was subsequently made available to both fathers and mothers to spend time with their child, but with the proviso that both had to be employed. In March 2005, Mr Alvarez asked his employer, Sesa Start Espana, for the leave but was told he was not eligible as his wife was self-employed. When the case was heard by the European Court of Justice (ECJ) the court said that it was sex discrimination to grant (what was originally breastfeeding) leave to employed mothers, but not to employed fathers unless the child’s mother was also an employee. The Court went on to say that the discrimination could not be justified on the basis that it had been introduced to protect women because amendments to the legislation meant that it had become “detached from that purpose” and was now accorded to workers in their capacity as parents. Nor could it be justified on the ground that it promoted equal opportunities between men and women (for instance by helping women to keep their jobs following the birth of a child). Instead, the court said it was more “liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties”.
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
C-D v S-T ET/2505033/11 A midwife sonographer, who had a baby through the use of a surrogate, brought a claim for maternity and sex discrimination against her employer after being refused maternity leave. The employment tribunal stated that UK domestic legislation on maternity rights did not apply to C-D’s situation. The tribunal made a reference to the ECJ to determine whether UK law is compliant with the European legislation from which it stems, i.e. whether a mother expecting a child through the use of surrogacy has the same rights and entitlements as non-surrogate parents under European law. The Advocate General (adviser to the court) said that a UK mother should be given maternity leave and that she should share her entitlement with her surrogate mother. The intended mother was employed at an NHS hospital and had a baby through surrogacy who she cared for – and breastfed – from birth, before she was granted a parental order by the UK family court giving her legal responsibility as a parent. The ECJ preliminary opinion was that she had been discriminated against under EU law by being denied maternity leave rights. However, in a second case heard around the same time a different Advocate General expressed a different view. In this case originating in Ireland, a mother who worked as a teacher with a child born through surrogacy in California was not discriminated against by having been denied the right to maternity leave. The adviser to the court said that whether Ireland should extend the scope of maternity leave to cover mothers through surrogacy was a matter for the Irish Parliament. The differences are on the face of it puzzling given the factual similarities between the cases, particularly with the opinions given virtually simultaneously. However, each case was argued under different parts of European anti- discrimination law, and there was a key difference in that Ireland does not allow for surrogacy, whereas UK law does. Extension of rights in 2015 Perhaps as a consequence of these and other long running cases, legislation came into effect in 2015 affecting the right to time off for new parents. Reforms under the Children and Families Act 2014 came into force on 5 April 2015 extending adoption leave to surrogacy, allowing parents in the UK expecting a child through surrogacy the same rights to time off work as other new parents. In December 2014 the Shared Parental Leave Regulations 2014 came into effect, allowing parents to share leave following the birth or adoption of their child. Aside from an initial two weeks of maternity leave for the mother, up to 50 weeks of leave and 37 weeks of pay can be shared between parents. Yet despite this apparent equalisation of rights, the court cases continued, because although parents of both genders now have an equal right to time off, the rates of payment are not the same, with maternity and adoption leave paid at a higher rate than paternity and shared parental leave. Two recent cases highlight the complexity of the issue, with an important distinction being drawn between the purpose of maternity leave and that of shared parental leave.
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Ali V Capita Customer Management Ltd In April 2018 the Employment Appeal Tribunal (EAT) ruled that the rate of pay for a male employee taking shared parental leave cannot be compared to a female employee on paid maternity leave because the purpose of the leave arrangement is different. The case was taken to the EAT after an Employment Tribunal decision, published in June 2017, found that Madasar Ali was subjected to sex discrimination when his employer did not allow him to take additional paternity leave at full pay. The EAT found that the original tribunal had failed to consider the full purpose of paid maternity leave which it said was for “the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth” whilst shared parental leave is designed to aid parents with childcare. The EAT ruled that the correct comparator in this case, therefore, would be a female employee on shared parental leave and pay rather than a female employee on maternity leave and pay, and since shared parental leave is delivered on equal terms to both men and women, this would mean Ali was not subjected to sex discrimination. Hextall v Chief Constable of Leicestershire Police A month later, in May 2018, the EAT decided that employers who enhance maternity pay but only pay the statutory rate for shared parental leave (SPL) are potentially indirectly discriminating against men. Hextall claimed that if he had been a female police constable on maternity leave he would have been entitled to his full salary for the period he took SPL. He claimed indirect sex discrimination by Leicestershire Police Force, as the only option for men was SPL at statutory pay. The EAT found that this could have an impact on fathers because they have no other choice if they wish to take leave to care for their child, whereas mothers have the option of taking maternity leave.
The EAT referred the decision to a new employment tribunal to reconsider, and examine whether the practice, if found to be discriminatory, can be justified. The outcome of this case is still pending.
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
CIPP RESEARCH
The CIPP would like to thank all those who responded as this enables greater understanding of the effect gender has on statutory leave.
The survey was distributed to the UK payroll community through the CIPP’s News Online enewsletter , standalone marketing emails and through social media. The survey received 75 responses, and of those, just under half provided all the information needed to explore if there is a gender gap in who takes statutory leave. The 34 respondents who did provide the detail required for this research were responsible for paying a total of 20,827 workers. Approach With the low take-up of shared parental leave and the government’s current focus on raising awareness of SPL, particularly amongst fathers, this report seeks to understand if there is a gender bias amongst UK workers as to who takes statutory leave of any kind, not just SPL.
The survey asked respondents how many workers they had, and of those how many were male and how many female. The survey then asked how many employees, of each gender, took statutory leave.
Results
Gender of employees covered by this report The workforce was relatively evenly split by gender with 10,826 males and 10,001 females.
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Proportion of employees taking sick leave Out of the 20,827 employees covered by this report, 8,788 of them had taken sick leave in the past 12 months. A greater proportion of women took sick leave, 4,584 out of 10,001 compared with 4,204 out of 10,826 men.
Number of employees taking maternity or paternity leave With only women able to take maternity leave, it is not possible to make a direct comparison with male employees.
However, it is interesting to observe the number of partners (250 male and one female) taking paternity leave following the birth or adoption of a child, in comparison with the 444 women taking maternity leave during the same 12 month period.
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
Proportion of employees taking adoption leave Although the number of employees taking adoption leave is very low, with only two out of 10,826 male employees taking adoption leave, and ten out of 10,001 females. The results show that almost five times as many female employees as males have taken this leave.
Proportion of employees taking shared parental leave With 14 female and 16 male employees taking shared parental leave, uptake of shared parental leave, though very low amongst survey respondents, appears evenly split amongst male and female employees. Although this is perhaps not unsurprising given that females must curtail their maternity leave in order to begin sharing the leave with their partners. There is of course the option for women to go back to work and not take any shared parental leave if their partner takes the whole of the remaining time off, but on the basis of these results, that does not seem to be a common occurrence.
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Proportion of employees taking parental leave With the number of employees taking shared parental leave being relatively evenly split between males and females, one might be forgiven for thinking that this would be reflected in the number of males and females taking parental leave, however this is not the case with more than three times the number of females taking leave to care for their children than males.
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
CONCLUSIONS
The aim of this report was to establish if the amount of statutory leave taken varied according to gender.
The findings of this research would suggest that it does, with females taking more statutory leave than men. In fact women took more of every type of leave except for shared parental leave, but this is not surprising given its interaction with maternity and adoption leave. But it would be rash to make general assumptions as to the reasons behind this. It’s possible of course that the simplest explanation is the true one, that in the case of sick leave for example, men really are unwell less often than women. However, the reasons why men take less statutory leave than women are likely to be much more complex, only established by further, more in depth, research. We know from gender pay gap statistics that men tend to earn more than women, with the government’s own statistics 2 reporting that median pay for all employees was 17.9% less for women than for men at April 2018. With statutory leave paid at a much lower rate than most workers’ actual rate of pay it may be that finances determine which partner takes time off work. But perhaps parents take a more longer-term view than the immediate impact of statutory payment rates. This same government research highlights a gradual widening in the pay gap between mothers and fathers after the arrival of the first child, reflected in a widening gap in the amount of time spent in the workplace. However, it is equally possible that parents still hold to the traditional view that childcare is a mother’s role and that financial implications are less of a factor. But with the government itself so concerned about the low take-up of shared parental leave that it launched a media campaign 3 to raise awareness and increase participation it will be interesting to see if the legislative framework is tweaked to make shared parental pay more generous at some point in the future.
In the meantime, it will be interesting to see if ongoing case law has an impact on what action the government takes next.
2. http://researchbriefings.files.parliament.uk/documents/SN07068/SN07068.pdf 3. https://www.gov.uk/government/news/new-share-the-joy-campaign-promotes-shared-parental-leave-rights-for-parents
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APPENDIX A: MALE V FEMALE BY REGION
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
APPENDIX B: MALE V FEMALE BY TURNOVER
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APPENDIX C: PORTFOLIO PAYROLL ARTICLE ON STATUTORY SHARED PARENTAL LEAVE (SSHPL)
Danny Done, managing director at Portfolio Payroll, discusses the implications of recent judgments and highlights the growing uneasiness surrounding SShPP Is SShPP discriminatory?
H aving first been introduced in April 2015, statutory shared parental leave (SShPL) and the accompanying statutory shared parental pay (SShPP) were intended to increase the flexibility with which working parents can manage taking time off after they have children. However, over recent months two notably similar disputes involving SShPL have reached the Employment Appeal Tribunal (EAT), an issue which is only likely to grow in significance in light of the government’s current aim to increase awareness of this statutory entitlement amongst those who are eligible to take it. In the case of Capita Customer Management V Ali, the EAT overturned the decision of the initial Employment Tribunal (ET). The ET had previously ruled Capita’s practice of paying male employees the statutory amount of SShPP and female employees an enhanced rate of maternity pay was tantamount to sex discrimination. On appeal the EAT examined the test for discrimination and ruled the ET had mistakenly found that the correct comparator for a father on SShPL was a mother on maternity leave. It was ruled that Mr Ali could not reasonably compare himself to a mother on maternity leave given the special protection afforded to women during this period. The EAT added that maternity leave and pay is designed to safeguard the health of the mother and the child following the birth, whilst SShPL and SShPP are purely to care for the child. The appeal was upheld, and the finding of sex discrimination was overturned. The case of Hextall vs CC of Leicestershire Police again involved a male employee claiming that his employer had discriminated against him because of his sex by offering female staff enhanced rates
of maternity pay but only the statutory rate of SShPP. However, Hextall’s initial claims of direct and indirect discrimination were dismissed by the ET, which stated the claimant could not compare himself to a woman on maternity leave due to the obvious material differences between the two. In dismissing the claim of indirect discrimination, the ET decided the correct comparator would be a female same sex partner who chose to take SShPL and in this instance the statutory rate of SShPP applied to both men and women equally. The employee appealed the finding on indirect sex discrimination. The EAT ruled that the ET had wrongly applied the test of indirect discrimination when it found that, as both male and female employees were treated in the same way, there was no discrimination involved. Indirect discrimination will always involve equal treatment, but the test is in deciding whether one sex, in this case, is disproportionately affected over the other. ...in the near- future this may become a key battleground for employee disputes The EAT identified the disadvantage as the lack of choice for male employees in their choice of paid leave; female employees have that choice. The correct procedure would have been to use a pool of individuals to test the disparate impact of the rate of SShPP on men and women in materially indistinguishable circumstances. The EAT overturned the initial decision on this basis but did not have sufficient
evidence to determine the size and make- up of the pool; the case was remitted to the employment tribunal for further consideration. Whilst these cases have different outcomes they highlight a growing uneasiness surrounding the topic of SShPP, suggesting that in the near-future this may become a key battleground for employee disputes. Whilst we know now from the Ali case that a practice of paying male employees SShPP whilst female employees receive enhanced maternity pay is not direct discrimination, there is a possibility that it is indirect discrimination to which a different test is applied. Employers should remember that indirect discrimination can be objectively justified meaning that, given an employer uses the practice as a proportionate means of achieving a legitimate aim, it may continue with the disparate treatment. It would be advisable, therefore, for employers whose pay practices match those discussed above to consider the reason for adopting the practices, such as to aid recruitment and retention of women. It is likely that employers will need to demonstrate the identification of the problem they faced for which the unequal payment was the resolution. Where the practice cannot be objectively justified, employers could consider increasing rates of SShPP to match enhanced rates of maternity pay. This would help guard against discrimination claims and increase gender equality by making SShPL a more attractive option. On the other hand, paying only statutory pay during both maternity leave and SShPL offers a more cost-effective method of equal treatment.
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
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