Shared parental leave and sex discrimination


30 April 2021

The Employment Appeal Tribunal (EAT) has considered the question of whether it is sex discrimination to pay a man on shared parental leave less than a woman taking adoption leave.

Price v Powys County Council UKEAT/0133/20

Facts

Mr Price requested to take a period of shared parental leave (SPL) following the birth of his first child. He was told by his employer, Powys County Council, that he would receive statutory shared parental pay for his period of SPL. Employees at the Council who took statutory maternity or adoption leave were entitled to enhanced maternity or adoption pay under the Council’s ‘Supporting Working Parents Policy’.

Mr Price brought a claim against the Council for direct sex discrimination, on the grounds that a female employee taking either maternity or adoption leave would receive a higher rate of pay. The tribunal rejected his claim on the basis that the correct comparator for the purposes of establishing his claim would be a female employee taking SPL, who would have received the same pay as Mr Price.

Mr Price appealed to the EAT.

EAT decision

The EAT has dismissed the employee’s appeal, upholding the decision of the employment tribunal that there had been no sex discrimination in the payment of statutory pay for shared parental leave.

The Court of Appeal, in the conjoined cases of Hextall and Ali, previously held that the underlying purpose of maternity leave was different to that of SPL, meaning that the claimants could not compare themselves with women on maternity leave who received enhanced contractual maternity pay. Mr Price argued in this case that the underlying purpose of statutory adoption leave (SAL) and SPL were the same: the facilitation of childcare. He claimed that this allowed a comparison between a man on SPL and a woman on SAL.

The EAT rejected this argument, and in particular disagreed with the argument that the predominant purpose of adoption leave is the facilitation of childcare. It is important for the forming of a parental bond and taking steps to prepare and maintain a safe environment for the child.

The EAT also upheld the tribunal’s finding that there are material differences in the position of a man taking SPL and a woman taking adoption leave. Statutory adoption leave can be started before the child’s placement begins, and is an immediate entitlement when a placement is confirmed, unlike SPL, which can commence at any stage during the child’s first year. The EAT agreed that the flexible nature of SPL, which can be taken in discontinuous periods, was also a material difference to adoption leave.

For this reason, the EAT was satisfied that the correct comparator for Mr Price was a woman on SPL. Since a woman would receive the same rate of pay, his claim of sex discrimination failed.

Consequences

It would have been surprising if this claim had succeeded, in view of the Court of Appeal’s decision in Hextall and Ali and the Court’s findings in relation to the issue of the appropriate comparator for establishing discriminatory treatment.

The decision does however highlight the disparity in pay provision that persists in many workplaces, meaning that take up of SPL remains very low. Some employers have already taken the step of aligning pay for SPL with their enhanced maternity pay, but this decision will provide some comfort for those who don’t, that they are unlikely to face a successful discrimination claim.

Campaigners have recently called for the existing SPL scheme to be scrapped and replaced with a fixed period of paid leave for mothers and fathers, due to the low take up.

These articles are from the April 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2021.

Author

Liz Stevens

Professional Support Lawyer

+44 (0)1603 756474

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