Enhanced confusion: shared parental pay and discrimination

An Employment Tribunal has ruled that an employer directly discriminated against a male employee on the grounds of sex when it refused him enhanced shared parental pay while mothers on maternity leave were in receipt of full pay.

The Claimant, Mr Ali, was entitled to two weeks' fully paid leave following the birth of his child in February 2016. A female employee would be entitled to 14 weeks' full pay following the birth of her child. The Claimant accepted that there was a material difference between him and a mother during the first two weeks following giving birth, given the mother would be on compulsory maternity leave. His complaint, however, was that in the following 12 weeks he was deterred from taking leave and was treated less favourably than a comparable female employee.

In Ali, the Employment Tribunal agreed that the Claimant could compare his treatment to that of a hypothetical comparator female who had taken leave to care for her child after the two week compulsory leave period. The Tribunal agreed that the reason why Mr Ali was treated less favourably was his sex.

The Tribunal rejected the Respondent's contention that special treatment for mothers should extend to the whole first 14 week period protected under Article 8 of the EU's Pregnant Worker's Directive 1992 and which is included as an exception to direct discrimination in the UK's Equality Act 2010. Citing the context of parental roles in 2016 and the increased role of men in caring for their children, the Tribunal challenged the assumption that the mother is always best placed to undertake that role.

Comments

While the findings of this case are likely to cause concern for employers, many of whom have not provided enhanced shared parental pay on the same terms as enhanced maternity pay, the case's significance should not be overstated. Firstly, as a first instance Employment Tribunal decision, this case is not binding on future tribunals. Secondly, there are reasons to doubt the legal basis of the decision and many employment law commentators have been sceptical.

In this case, the Tribunal accepted that Mr Ali could compare himself to a mother after the two weeks' compulsory maternity leave period had ended. An alternative argument, which does not appear to have been advanced by the Respondent in this case, is that the correct comparator should be a woman using shared parental leave (SPL). This argument was pursued effectively by the Respondent in a Tribunal decision on similar facts last year (Hextall v Chief Constable of Leicestershire Police). While the Tribunal in Ali accepted that the purpose of maternity leave after the end of the compulsory two week period was caring for the child, which could be done by either parent, a European Court of Justice's decision has recognised that a maternity leave period of 16 weeks was still intended to protect a woman's biological condition even though this extended beyond the minimum 14-week period set out in the Directive.

A more obvious claim in this context is for indirect discrimination on the basis that there is a provision, criterion and practice (PCP) which applies equally to men and women but which puts men at a particular disadvantage. The Tribunal rejected Mr Ali's indirect discrimination claim on the basis that the maternity policy is not gender neutral and therefore does not apply equally to men and women. It may be that this rejection was based upon the way Mr Ali framed his claim – basing it on the maternity policy rather than on the provision of shared parental pay. It is likely that the decision only to provide statutory shared parental pay is a PCP which applies equally to men and women because both sexes can use SPL. The earlier Tribunal decision of Ford v Shuter, which applied to additional paternity leave before the introduction of SPL, found that only providing statutory paternity pay while providing full pay to women on maternity leave was indirectly discriminatory but it was, in that case, objectively justified by the employer.

From the perspective of this author, it is admirable that the Employment Tribunal in Ali appears to have been at pains to emphasise the equal role of men and women in caring for children and to apply the law accordingly. From a legal perspective, however, the decision is highly questionable. The legal position has been placed in further doubt in an area where there is no current binding authority.