Is it discrimination to pay less for shared parental leave than for adoption leave?
Direct sex discrimination occurs where, because of sex, an employer treats an employee less favourably than it treats or would treat others. An employee claiming direct sex discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator. The comparator is a member of the opposite sex whose circumstances are not materially different to theirs.
Shared parental leave
Mr P and his wife decided that Mr P would stay at home to look after their baby and that his wife would return to work after her compulsory maternity leave.
The employer’s policy was that those on shared parental leave would receive pay equivalent to statutory maternity pay. Those on adoption leave were entitled to receive full pay. Mr P issued a claim in the Employment Tribunal. He argued that this was direct discrimination, on the basis that a female employee on adoption leave would be paid more than he would on shared parental leave.
The Employment Tribunal (ET) found that there are material differences between the scheme for adoption leave and the scheme for shared parental leave. Mr P’s claim failed. He appealed to the Employment Appeal Tribunal (EAT). The issue for the EAT to consider was whether it is discriminatory for a male employee on shared parental leave to be paid less than a female employee on adoption leave.
Employment Appeal Tribunal decision
The EAT agreed with the ET. It found that the purpose of adoption leave is not the same as shared parental leave. Although the purpose of facilitating childcare is an element of both types of leave, the purposes of adoption leave extend well beyond childcare alone. It also found that there are material differences between Mr P and a female employee on adoption leave. These factors include:
- Adoption leave can commence before a child’s placement, whereas shared parental leave cannot. The EAT found that the fact that adoption leave can start before there is a child to look after highlights that adoption leave is about more than just facilitation of childcare.
- Adoption leave is an immediate entitlement on placement, whereas shared parental leave is not. Shared parental leave can start at any stage during the first year of a child’s birth. The EAT found that this underlines the need for the adopter to have time at the beginning of the placement to prepare and maintain a safe and stable environment for the child and to develop a parental bond.
- Shared parental leave can be taken in discontinuous periods if the employer agrees. The EAT found that this flexibility is consistent with the purpose of giving parents greater choice when it comes to childcare responsibilities. Adoption leave must be taken in a continuous period starting no later than the date of placement of the child.
The EAT found that a more appropriate comparator would be a female on shared parental leave. Such an employee would receive the same pay under the shared parental leave policy as Mr P. Mr P’s claim of discrimination therefore failed.
Employers may be reassured by this judgment of the EAT that there is no sex discrimination where an employer pays a man on shared parental leave less than a woman on adoption leave.
This follows an earlier case, in which the Court of Appeal (CA) considered whether it was direct sex discrimination where an employer offered enhanced maternity pay but no enhanced shared parental pay. In that case, Mr A argued that since a man on shared parental leave would receive less pay than a woman on statutory maternity leave, this was direct sex discrimination. However, the CA held that the correct comparator for a man on shared parental leave was a woman taking shared parental leave. The man could not compare himself to a woman taking maternity leave because their circumstances were materially different. The purpose of maternity leave after the compulsory two-week period was not the facilitation of childcare. The primary purpose of maternity leave is the health and wellbeing of the pregnant and birth mother.
22 April 2021
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