If you pay an enhanced level of maternity pay, must you also enhance the level of shared parental pay in order to avoid discrimination?
Until recently there have been conflicting decisions in the courts. In two cases, the employer offered an enhanced contractual level of maternity pay to their female employees on maternity leave. However, they only paid the statutory level of pay for employees that took shared parental leave, choosing not to enhance pay for that type of absence. In both cases, male employees that took shared parental leave sought to claim that their treatment was discriminatory because men are disadvantaged by not being able to access the enhanced rate of pay available for female members of staff.
In one case the Tribunal found that paying a contractually enhanced level of maternity pay but paying only statutory shared parental leave pay was discriminatory because of sex. In the other the Tribunal found that there was no discrimination against men because maternity pay has a different purpose to shared parental pay and can be justified.
Maternity leave and pay are available only to mothers and is designed to protect the health and wellbeing and ensure a woman giving birth does not suffer a disadvantage as a result. Shared parental leave and pay is available to men and women to allow the non-maternal parent or carer to share in the care of the child.
The Employment Appeal Tribunal has now clarified the situation and confirmed that paying contractually enhanced maternity pay but only statutory shared parental pay does not necessarily result in discrimination.
In one of the cases it was confirmed that a man on shared parental leave cannot properly compare himself to a woman on maternity leave as they are not in materially the same circumstances. Further, a woman on shared parental leave would also only receive the statutory level of pay and so the discrimination cannot be because of sex. In the second case, it was found that the different rules could result in men being disadvantaged because they are unable to access any enhanced scheme but that this was justified and permissible to protect the health and wellbeing of the mother.
Since the shared parental leave became available the take up of the this type of leave has been very low. The recent decisions in these cases are unlikely to encourage an increase in the take up of shared parental leave.
If you required advice on family leave and pay issues or policies please feel free to contact us on 01274 86499
