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Should shared parental leave pay reflect enhanced maternity pay?

Shared parental leave hasn’t had much press since its introduction in 2015. Most news-worthy stories simply commented upon the apparent lack of uptake, with new father’s not exercising their right to take such leave. One such report suggested that less than 1% of fathers had taken shared parental leave, speculating that the low uptake might be due to the fact that some employers paid enhanced maternity pay to mothers but shared parental leave pay was not comparable.

Since its inception, we have pondered whether an employer’s shared parental leave policy which does not replicate enhanced provisions of other family-friendly policies could be discriminatory. There has always been an argument that as men can only access leave via paternity leave or shared parental leave policies, they are disadvantaged as women can access up to 52 weeks’ leave either using maternity leave or shared parental leave.

The argument was recently tested in the case of Ali v Capita Customer Management. In this case, Mr Ali claimed he was directly discriminated against on the grounds of his sex because Capita refused to match the 14 weeks’ enhanced maternity pay (full pay) it provided to new mothers when he wanted to take shared parental leave. Capita’s shared parental leave policy only allowed for leave to be paid at the relevant statutory rate.

Mr Ali’s wife was suffering from post-natal depression and had been advised to return to work to assist with her recovery. Mr Ali wanted to take shared parental leave and asked his employer to pay him for up to 14 weeks’ full pay in line with the maternity leave policy but his request was refused.

Capita argued that it would have treated a female partner of a woman who had given birth in exactly the same was as it did Mr Ali and sex was therefore not the reason for rejecting his request. The Tribunal did however find that refusing to pay Mr Ali the same pay as a mother taking maternity leave was direct sex discrimination as he would have suffered a substantial drop is salary as a result of exercising his right to shared parental leave pay.

This case is now being appealed so we will have to await further news to see whether the decision is overturned.

In the meantime, many employers have already chosen to enhance shared parental leave pay in line with maternity benefits as part of a commitment to equality; and this is certainly something the government encouraged when the regulations were first introduced. As this recent case is being appealed, you may choose not to take any action for the time being but, as an employer, we would recommend you at least consider your own family-friendly policies at this stage and assess what you feel the impact of offering enhanced shared parental leave pay would be on your business.

Here at SCE Solicitors, we like to keep you up to date with recent case law developments to bring you real life examples which you can apply to your business. If you have any queries about your family-friendly policies, issues relating to equality or any other employment law issue, please contact us on 01133 50 40 30 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

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