Shared parental leave was introduced in April 2015 but figures show that up-take has been relatively low. It may be linked to the fact that many employers pay shared parental leave at a statutory rate only, in contrast to maternity pay, sometimes paid at an enhanced or full rate.
Two recent employment tribunal cases
Two cases looked at whether employers offering enhanced or full pay under maternity policies, in contrast to statutory rate pay for shared parental leave, amounted to sex discrimination.
They highlighted the ‘purpose’ of maternity leave in comparison to shared parental leave.
The primary purpose of maternity leave (according to the courts) being for the health and well-being of the mother. Shared parental leave is viewed as a childcare based option.
This distinction guided the decision that employers offering differential rates for maternity leave and shared parental leave, didn’t amount to direct discrimination. However, the Tribunal found that differential pay rates may amount to indirect discrimination. At present, this leaves the door open for potential indirect discrimination claims.
Both cases are set to be reconsidered, either at a fresh Employment Tribunal or at the Court of Appeal in the coming months. Given that indirect discrimination is ‘justifiable’ in the legal sense of the word, it’s unlikely that we’ll see any major policy changes, imposing equality of shared parental leave and maternity leave.
Whilst there was no intention for shared parental leave to be comparable with maternity leave when it was introduced if, as a result of the outcome of the above cases, this is the Court’s interpretation, arguably new legislation would be needed in order to clarify, regulate and guide this.
What should employers do
For the time being, employers should review their current arrangements and their justification for any differential rates. On a more general level, cultural perceptions on the varying parental leaves arguably play a big role in the low uptake of schemes such as shared parental leave.
So, employers may want to consider how they can make shared parental leave more accessible or ‘normal’ for their male employees, when reviewing policies.
Posted on October 3, 2018