(A) Should you publicise your Shared Parental Leave Policy? and (B) by doing so could this expose you to potential claims for discrimination over pay?
Large organisations (250 staff or more) are being urged to publicise their Shared Parental Leave Policy (SPL) to all eligible staff to encourage awareness and transparency. MP Jo Swinson believes that publication of this policy would help employers retain staff and attract new employees. According to figures produced by the Department of Business, Energy and Industrial Strategy, since it was introduced in 2015, only 2% of eligible parents have taken up the scheme. It is unclear as to why this figure is so low, but it is suggested that this may be because staff are unaware of the benefits available to them and fathers tend to bring in to the household the higher wage.
To date employers may have been reluctant to publicise this policy due to possible claims of discrimination over pay if the employer offers enhanced maternity pay and not enhanced shared parental leave pay (ShPP) but, should they be concerned?
(B) No according to:
The case of Capita -v- Ali where the EAT found that failing to enhance ShPP in line with enhanced maternity pay did not amount to direct sex discrimination.
The weekly rates for statutory ShPP and statutory maternity pay (SMP) are the same. When the ShPP scheme was introduced there was considerable debate about whether employers with enhanced maternity packages would be obliged to match those benefits for anyone taking SPL. There is no statutory requirement for them to do so and the government takes the view that there is no need for them to do so. However, the question of whether an employer that enhances maternity pay would discriminate directly or indirectly against men if it failed to similarly enhance ShPP was less certain.
In the case Capita -V- Ali, Mr Ali took two weeks’ paid leave immediately upon the birth of his daughter. His wife was diagnosed with postnatal depression and advised to return to work. Mr Ali accordingly wished to take further leave to look after his daughter. He asked Capita about his rights and they informed him that he was eligible for SPL, but that they only paid statutory ShPP. Mr Ali asserted that he should receive the same entitlements as a female employee taking maternity leave who, in the circumstances, would receive enhanced maternity pay. When his grievance to this effect was rejected, he issued proceedings in the employment tribunal, alleging direct and indirect sex discrimination.
An employment tribunal held that Mr Ali had been directly discriminated against on the ground of his sex, but dismissed his indirect discrimination claim.
Capita appealed this decision which was upheld. The stated differences of the purpose of maternity leave and SPL was the factor that allowed for the difference in pay. It was confirmed that maternity leave and pay is for the health and wellbeing of the mother. By contrast, the purpose of SPL is for the care of the beneficiaries’ child. The correct comparator could therefore not be a woman on maternity leave. In the EAT’s view, the correct comparator was a woman on SPL, who would have been given SPL on the same terms as Mr Ali received. The inevitable conclusion was that Mr Ali had not been discriminated against on the ground of sex.
This decision has been appealed so watch this space!