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  • Shared Parental Pay and Enhanced Maternity Rights – Father Loses Discrimination Claim

    5th June 2018

    The introduction of the Shared Parental Leave Regulations 2014 has given eligible parents more flexibility as to how leave can be taken after the birth or adoption of a child. Shared parental leave (SPL) enables mothers to share up to 50 weeks' maternity leave and 37 weeks' pay with their partner so that both parents are able to keep a strong link to their workplace.

    However, the Regulations only require that employees taking SPL are paid at the statutory rate, which is currently £145.18 per week, or 90 per cent of the employee's average weekly earnings, whichever is lower.

    There is no statutory requirement for employers that offer enhanced maternity rights to women on maternity leave to 'mirror' those arrangements for employees who opt to take SPL.

    A recent case on this topic (Ali v Capita Customer Management Limited) concerned a father whose wife had been advised to return to work to help overcome post-natal depression.

    The father claimed that his employer's policy of giving mothers with 26 weeks' employment service the option of 14 weeks' enhanced maternity pay followed by 25 weeks payable at the statutory rate, whereas fathers were only entitled to take two weeks' paternity leave on full pay then SPL paid at the statutory rate, was discriminatory on the grounds of sex.

    The Employment Tribunal (ET) upheld his claim on the basis that the aim of SPL is to encourage fathers to take a greater role in childcare and the parents' decision as to who will take on the role of primary carer should be free from 'generalised assumptions' on the part of the employer that the mother is better placed to fulfil this role than the father.

    The Employment Appeal Tribunal (EAT) has now upheld the employer's appeal against that decision and ruled that it is not discriminatory to refuse to pay a new father enhanced pay while on SPL in circumstances where a woman would have received enhanced maternity pay.

    The EAT found that the ET had erred in concluding that the circumstances of the father were comparable within the meaning of Section 23(1) of the Equality Act 2010 to those of a woman who had recently given birth as both could take leave in order to care for their child. This finding failed to take account of the purpose of maternity leave and pay, which is to safeguard the health and wellbeing of expectant and new mothers.

    Whilst a woman on maternity leave will care for her baby, that is not the expressed or primary purpose of such leave and pay. In the EAT's view, the payment of maternity pay at a higher rate constituted special treatment afforded to a woman in connection with pregnancy or childbirth for the purposes of Section 13(6)(b) of the Act.

    By contrast, the reason for SPL is to enable a mother to share the balance of her leave allowance with her spouse or partner in order to share the care of their child, and SPL is paid at the weekly statutory rate, whether paid to a man or a woman.

    Contact Caroline Mitchell or Maxine Nutting in Devizes on 01380 722311 for individual advice on this issue.

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