Shared Parental Leave and Discrimination
Shared parental leave allows parents to share time off in a flexible way to care for a child. Employees are entitled to be paid a minimum of statutory shared parental pay but employers can pay enhanced rates if they wish to do so.
However, the law is not clear as to whether employers have to match the rates that they pay for enhanced maternity pay for employees taking shared parental leave. The legislation simply states that men and women taking shared parental leave must be paid the same.
An employer has a potential defence to a discrimination claim if the policy in question is a proportionate means of achieving a legitimate aim. For example, if an employer pays enhanced maternity pay as a means of attracting female employees to come and work for them to increase the number of women in their workforce, it might not be discrimination.
In the recent case of Snell v Network Rail, Mr Snell brought a claim alleging that it was discrimination that women working for Network Rail were entitled to enhanced maternity pay but men wanting to take shared parental leave were only entitled to statutory pay. Unfortunately Network Rail conceded the point before it was decided by the Tribunal. Regrettably for Network Rail’s staff, in response to the case they decided to amend their maternity leave policy and scrap their enhanced maternity pay scheme altogether which must have been very unpopular!
Until further legislation is introduced or there are further cases decided on this point, the law remains unclear. In the meantime employers are advised to be alive to the possibility that there could be claims of discrimination, and to give careful consideration to the payments they make under family leave policies and their reasons for paying different rates.