A victory of sorts?

Many of you will have seen the news reports this week regarding the case of David Snell successfully bringing a claim for sex discrimination in relation to payment during a period of shared parental leave. When I first read the reports, I was intrigued to see how the various arguments on whether discrimination had occurred played out, and whether any lessons could be learned. In particular, if indirect discrimination had been claimed, how was the justification defence presented? Alas, having obtained a copy of the judgment (and in subsequent news reports) it became clear that this was actually a remedy hearing – Network Rail had conceded it unlawfully indirectly discriminated against Mr Snell and Mr Snell had withdrawn his claim for direct discrimination. That said, the judgment does make for interesting reading and there are some issues worthy of note.

By way of brief background, both Mr Snell and his wife work for Network Rail. Network Rail had a Family Friendly Policy covering shared parental leave and pay. The policy differentiated between mothers (primary adopters and first surrogate parents) and partners (secondary adopters and secondary surrogate parents). Eligible mothers (or those falling into the first category) were entitled to 26 weeks' shared parental pay at full pay, up to a further 13 weeks' shared parental pay paid at the statutory rate and 13 weeks' unpaid leave. However, eligible partners (and those falling into the second category) could not benefit from the enhanced pay and were only entitled to pay at the statutory rate for up to 39 weeks. In August 2015, Mr Snell made an application for shared parental leave. His baby was due in January 2016 and he wished to take shared parental leave from 4 April to 27 June 2016 (but indicated he did not wish these dates to be binding and indeed he later intended to extend the period of leave to 24 weeks). NR responded and confirmed that Mr Snell would be paid at the statutory rate when on shared parental leave.

On 22 September 2015, Mr Snell submitted a grievance arguing that he was being discriminated against because of his sex on the basis of the different payments to mothers and fathers under the policy. NR has a Grievance Procedure which is very detailed, setting out timescales etc for dealing with complaints. Unfortunately NR entirely failed to follow its own procedure and subsequently there were considerable delays in dealing with the grievance (largely caused by a confusion over who would hear the grievance and delays to take external advice). This caused understandable stress to the Snells. The grievance hearing took place in November and in January (some 61 days after the grievance meeting), Mr Snell was informed that his grievance was not upheld. NR felt that there was no discrimination as in its view the correct comparator was a female partner (who was not the mother, primary adopter or first surrogate) who would be paid the same as a male partner on shared parental leave. In addition, the reason for the difference in paying mothers more was to retain female employees in a male dominated industry (an argument similar to that put forward in the Ford Motors case).

Mr Snell appealed. In his appeal, Mr Snell noted that the purpose of shared parental leave is 'childcare alone' (unlike maternity leave which also serves to protect the health and safety of the mother arising from the biological condition of pregnancy and childbirth). Mr Snell argued that the correct comparator for a man taking shared parental leave is a woman taking shared parental leave and there is no material difference of whether this is a mother or father. Given the timing issues, Mr Snell also submitted his Tribunal claim prior to the appeal hearing in February. Mr Snell's appeal was subsequently rejected. The appeal decision reiterated NR's view that the correct comparator should be a female partner of a mother.

As NR subsequently conceded the indirect discrimination point, the Tribunal was not required to rule on this. However, it was clear in the Tribunal's judgment that it had considerable sympathy for Mr Snell. He was under significant stress at a time that should have bought much happiness. Mr Snell was awarded £5,000 injury to feelings which was uplifted by 20% for a failure by NR to follow the ACAS Code of Practice. Mr Snell was also awarded compensation for future loss of earnings and pensions loss (as he was due to take the shared parental leave after the remedies hearing), interest and repayment of his ET fees.

So there is a (sort of) happy ending for Mr Snell, although his is something of a pyrrhic victory. In the midst of this situation, NR decided to change its Family Friendly Policy removing the enhanced pay element for mothers, so that anyone taking shared parental leave will now receive pay solely at the statutory rate.

So what can we learn from this decision? Unfortunately the case does not provide any more guidance on how an employer might objectively justify a difference in pay between men and women although any defence based on the 'recruitment and retention of females in a male-dominated workforce' is likely to get short shrift in the Tribunal unless supported by hard statistical evidence. In addition, it doesn't address the situation where a man on shared parental leave seeks to challenge an enhanced maternity scheme – although we understand that there may be some cases based on this argument coming through the Tribunal soon.

However, as I said at the beginning, this case does serve as a reminder of a few basic points:

• If you have a grievance procedure - follow it. If you don't have one, at the very least ensure that you follow the ACAS Code and deal with complaints promptly and reasonably.
• If you have family-friendly policies, make sure your managers are trained in their application (and in equal opportunities more generally). The manager in this case appeared totally out of his depth in dealing with the situation.
• If you seek to change your policies, make it clear how they are to be applied going forwards and whether there is any transitional period. NR tried to argue that Mr Snell's future loss should be calculated under their 'new' policy – an argument that was swiftly rejected by the Tribunal.