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Dad’s losing out...but is it discrimination?

Whatever your political views, it's hard to deny that the rights of and protections for working parents have increased significantly over recent years. We have seen a number of changes which enhance the rights of working parents – one of which was the introduction of additional paternity leave.  With the advent of the new shared parental leave regime coming into force next year, there is still plenty for HR professionals to be getting to grips with.  Bigger questions remain over the impact of utilising those rights and whether there's actually been a sea change in the views of employers about working parents, perceptions of commitment, career progression etc – but that's a subject for another day.

With the introduction of more rights for both parents, we are often asked whether an employer has to match an enhanced maternity pay scheme when offering an additional paternity leave scheme.  In short, our answer has generally been no and this has been confirmed as the correct approach in the Employment Tribunal in the case of Shuter v Ford Motor Company Limited.  Phew!  However, as with all these things (there is, of course, always a caveat) employers do need to be careful to consider the reasons why an enhancement is not offered to partners under an additional paternity leave scheme and carefully document these to ensure that any indirect discrimination argument can be justified.  Here's why….

In this particular case, Mr Shuter works for Ford Motors who have a policy (in place since 2003) that mothers can take up to 52 weeks' fully paid maternity leave.  One of the aims of this policy was to "promote the recruitment, retention and development of women", particularly in light of the fact that Ford's employees were (and still are) predominantly male and attempts were being made to improve the Company's diversity records.    Fathers who elect to take their 2 week statutory paternity leave are also paid 100% of their salary.  However, partners who elect to take additional paternity leave are only paid at the basic statutory rate.  Mr Shuter took advantage of the additional paternity leave scheme: after 20 weeks of maternity leave, his wife returned to work and he stayed at home to care for their child for approximately 5 months.  He argued that Ford Motor's policy was discriminatory as fathers were being treated differently and disadvantaged (financially) by the maternity/paternity policies.

His arguments went as follows:

First, he suggested that he had suffered direct discrimination – and that the comparator should be a woman, who has given birth, and taken maternity leave exceeding 20 weeks.  This was rejected by the Tribunal who instead accepted that the correct comparator should be a female applicant for additional paternity leave (ie a female spouse or partner).  As such a comparator would not be treated differently and Mr Shuter's claim for direct discrimination failed.

Secondly, he argued that he had suffered indirect discrimination as the policy to continue to pay female employees on maternity leave beyond 20 weeks placed him (and other males) at a disadvantage.  The Tribunal accepted that whilst Ford Motor's policy did appear to be neutral on its face, it could give rise to a particular disadvantage for men.  As such, the Tribunal needed to consider whether the policy could be justified.  As highlighted above, the Tribunal accepted that the aim of the policy was to recruit and retain women in its workforce and were satisfied that this is a legitimate aim.  The Tribunal also accepted that the Respondent's actions were proportionate; statistical evidence was produced which showed that there had been an increase in the number of women in the workforce, particularly in professional and senior management grades, and therefore the policy had been effective.  As such the discriminatory treatment was justified.     

Whilst this is only a first instance decision, it is potentially helpful for employers considering their family-friendly policies.  If you choose to enhance maternity pay but keep other types of leave at the flat statutory rate it is important to document the reasons for this decision.  Should you have to demonstrate the rationale behind a policy, these documents could be key.  In addition, it is advisable to keep such policies under review and periodically conduct some research to ensure that the aim of the policy is actually being achieved.    

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