When paying employees to take shared parental leave, is it necessary to pay enhanced pay?
It can be argued that the circumstances of a man on shared parental leave compared to those of a woman on maternity leave are similar. Men and women can take shared parental leave from two weeks after the date of their baby’s birth and the right to shared parental leave does not depend on the mother returning to work. It is regarded as feasible that a claim for direct sex discrimination from a male employee could succeed where his employer provides enhanced benefits to women on maternity leave but not to employees on shared parental leave.
If such a claim for direct sex discrimination in these circumstances failed, the male employee on shared parental leave who is denied contractual benefits available to female employees on maternity leave could still potentially create an argument for indirect sex discrimination by suggesting that a policy of granting enhanced benefits only to women on maternity leave places more men than women at a disadvantage — because women in these circumstances have the choice either to remain on enhanced maternity leave or switch to shared parental leave (without enhanced benefits) while men only have the option to take shared parental leave without enhancements.
Until now, tribunals have taken differing views on whether granting enhanced benefits to women on maternity leave but not to men on shared parental leave, amounts to sex discrimination. In Hextall v Chief Constable of Leicestershire Police ET, the tribunal held that a man taking shared parental leave cannot legitimately compare his treatment with that of a woman on maternity leave — the correct comparator is a woman taking shared parental leave.
In a subsequent case of Ali v Capita Customer Management Ltd, the the tribunal took the opposite view and upheld a male employee’s claim of direct sex discrimination because his employer declined to pay him enhanced shared parental pay in circumstances where female colleagues on maternity leave were contractually entitled to enhanced maternity pay. Mr Ali successfully argued that after the first two weeks of a woman’s maternity the position of a father is comparable to that of the mother in that any leave taken is for the purpose of caring for the child. The tribunal upheld Mr Ali’s claim of sex discrimination, accepting that the comparison between him and a female employee taking maternity leave to care for her child after the two-week compulsory leave period was valid.
The question of whether it is discriminatory for an employer to grant enhanced maternity pay but not enhanced shared parental pay remains wide open. As yet, there is no clear authority on the matter and so the decision rests with the employer – not helpful if faced with such a situation!