Those of us keeping an eye on “family friendly” rights will know there have been many changes in recent years, perhaps the most notable being the introduction of shared parental leave from 5 April 2015. Parents of babies born after that date can share a maximum 37 weeks statutory shared parental pay (ShPP) entitlement between them. The idea being that after the first two weeks following birth (which is a period of compulsory leave for the mother), where parents have opted for the shared parental leave scheme, no assumptions are made as to which parent will take on childcare responsibilities.
Two years on and there is still much uncertainty about what this means for employers’ policies and what, if any, adjustments should be made to the pay given to new parents when taking time off. This is a particular issue where employers offer enhanced maternity pay for mothers but do not have in place a comparable scheme for fathers. Some employers have introduced completely new policies based on their interpretation of the rules whilst others have continued to apply their old ones in the hope that it will all work itself out in the end.
So, should employers be paying the same to men and women when they take time off to look after a new baby? What would be really useful is to have a clear indication from the Tribunal on this point to settle it once and for all. Unfortunately, two recent cases have done more to muddy the waters than give us a definitive answer.
The first was decided in August last year. In Hextall v Chief Constable of Leicestershire Police the Leicester Employment Tribunal was asked to consider whether it was discriminatory, on the grounds of sex, for the police to pay enhanced maternity pay but only pay statutory ShPP. It was decided that the correct approach was to compare a male employee’s pay to that of a female employee also on shared parental leave (rather than a female on maternity leave) to see whether he was being treated less favourably. As a woman taking shared parental leave would have been paid the same as a man it was found that there was no sex discrimination.
In the second case of Ali v Capita Customer Management Limited, decided in March this year, the Leeds Employment Tribunal took a different approach despite the circumstances being very similar. Here, it was found that the male employee was entitled to make a comparison between the ShPP he would have been entitled to and the enhanced maternity pay that a female colleague would have received when taking maternity leave. As enhanced maternity pay was more than ShPP the male employee was successful in his sex discrimination claim.
It is perhaps not surprising that both decisions are currently being appealed. Hopefully at that stage these cases can be reconciled and clearer guidance provided to employers. In the meantime, should you need any advice or support in dealing with parental rights or any other employment law or HR issues we are here to help. Why not get in touch and let us guide you through it.
Written by Laura Evans, Associate Solicitor at Your HR Lawyer