Sex Discrimination and Shared Parental Leave
The Employment Appeal Tribunal has ruled that, for the purpose of sex discrimination claims, a man on Shared Parental Leave is not comparable with a woman on Adoption Leave.
Section 3 of the Equality Act 2010 provides that “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
Gender is a protected characteristic under section 4 of the EqA 2010.
Section 11 of the EqA 2010 states that, in relation to the protected characteristic of sex:
- a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; and
- a reference to persons who share a protected characteristic is a reference to persons of the same sex.
It is unlawful for an employer to:
- discriminate directly by treating a job applicant or employee less favourably than others because of sex; and
- discriminate indirectly by applying a provision, criterion or practice (PCP) that disadvantages job applicants or employees of one sex without objective justification.
Shared Parental Leave
Shared Parental Leave was introduced by the Children and Families Act 2014 and inserted new provisions into Part 8 of the Employment Rights Act 1996. It gives employees who are parents a more flexible way to take leave in the first year after the birth of a child or the placement of a child with them for adoption.
Statutory Shared Parental Pay is paid at the rate of £151.97 a week or 90% of an employees average weekly earnings, whichever is lower. This is the same as Statutory Maternity Pay (SMP) except that during the first 6 weeks SMP is paid at 90% of whatever they earn (with no maximum).
Facts of the Price v Powys County Council case
The Claimant was employed by the Respondent. The Claimant, having found out his wife was pregnant with their first child, decided that he would stay at home to care for the baby while his wife returned to work. Accordingly, about six months before the due date, the Claimant began to inquire about his entitlements under the Respondent’s Shared Parental Leave Policy. In order to be able to make an informed decision, the Claimant sought a monthly breakdown of the pay that he would receive if he were to take 37 weeks’ Shared Parental Leave, and his wife just the two-week period of compulsory maternity leave. Three months later, the Claimant was informed that, in accordance with the Respondent's policy, he would only be entitled to an amount equal to statutory maternity pay (“SMP”). The Claimant did not proceed with his application for Shared Parental Leave.
The Claimant argued that the Respondent's policy was discriminatory in that employees on Statutory Maternity Leave and on Adoption Leave were entitled to pay at higher rates during their leave periods than those on Shared Parental Leave.
The Respondent’s 'Supporting Working Parents Policy' provided that the rates of pay for those on Maternity Leave and Adoption Leave with more than a year’s service were: 6 weeks at 90% of average weekly earnings; followed by 12 weeks at half pay plus Statutory Maternity Pay; followed by 21 weeks at Statutory Maternity Pay.
The Claimant brought claims at the Employment Tribunal (ET) for direct and indirect sex discrimination. For clarity, the indirect discrimination claim was based on the delays that had occurred in providing the Claimant with the requested information.
The ET heard the claim in September 2019 and considered two comparators relied upon by the Claimant. The first was a female worker on Maternity Leave in receipt of maternity pay and the second was a female worker on Adoption Leave in receipt of adoption pay. The ET rejected the first comparator on the basis that there was a material difference between the Claimant’s circumstances and those of his comparator. The ET also concluded the second comparator was materially different to an employee on Shared Parental Leave and therefore the claim of direct discrimination was dismissed.
The claim of indirect discrimination was also dismissed, the ET accepted that the delays were down to genuine errors and not because of any PCP on the part of the Respondent.
The Claimant appealed to the Employment Appeal Tribunal (EAT) in respect of the direct discrimination claim only.
The issue in the appeal was whether it was discriminatory for a male employee on shared parental leave to be paid less than a female comparator on statutory adoption leave.
The EAT dismissed the appeal, ruling that Adoption Leave is materially different to Shared Parental Leave, its purposes go beyond providing childcare. The requirement in s23 of the Equality Act 2010 that there must be no material difference in circumstances between the Claimant and his comparator was not met, so the claim failed.
What this means for employers
The Equality Act 2010 provides that there must be no material difference in circumstances between a Claimant and a comparator. This case confirms that a man on Shared Parental Leave cannot base a sex discrimination claim on being paid less than a woman on Adoption Leave as there is a material difference between the two. Whilst this decision will arguably be welcomed by employers, employers may want to consider their own Shared Parental leave policies as its up-take is definitely something which is becoming more popular.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Bethan Jones to discuss any issues you are facing.