POSTED: April 13 2018
Refusing fathers enhanced SPL is not discriminatory

Refusing fathers enhanced SPL is not discriminatory

Businesses can pay mothers and fathers different rates of parental pay for shared parental leave (SPL) without fear of discrimination claims, the Employment Appeal Tribunal has confirmed.

The case, reported in HR Grapevine, follows the plight of father, Mr Ali, who wished to take shared parental leave (SPL) so that his wife could go back to work after they had a baby. However, he was not entitled to pay at the higher maternity pay rate for 12 weeks after the two weeks compulsory maternity leave. Instead, he received the rate for shared parental leave.

He claimed this was a case of direct sex discrimination, so he sued his employer Capita Customer Management Ltd – but the tribunal disagreed.

“The reasoning behind this decision is that the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth,” explained Employment Solicitor and Senior Associate, Michelle Morgan from Gardner Leader.

The purpose of SPL, on the other hand, is to care for a child.

“The level of pay is inextricably linked to the purpose of the leave,” added Morgan. “The EAT (Employment Appeal Tribunal) held that the father’s situation was not comparable to a woman on maternity leave – a decision that will be seen as a welcome relief to employers.”

Faye Baker, Business Partner from advo hr, on commenting on the EAT’s decision said “Personally I think this will clear up a few anomalies that HR professionals may have had discussions around when SPL came into force. Initially the law around SPL and the pay, was not very clear and a lot of companies had to make an uninformed decisions regarding how they handle the pay for paternity and maternity, and then almost wait to see if any case law came in.”

Lauren Pullen-Stanley, Senior Associate in the employment team at Norton Rose Fulbright, agreed that many businesses would be happy with the result.

“Employers who made the decision to pay enhanced maternity pay to employees on maternity leave, but only statutory shared parental pay to employees on shared parental leave, will be very pleased to hear of the Employment Appeal Tribunal’s decision that this does not constitute direct sex discrimination, a point that was previously subject to conflicting case law,” she said.

“For now at least, employers can breathe a sigh of relief on this front.”

Working Families, the UK’s leading work-life balance organisation, supported the decision, but they also suggested employers review how they pay new fathers.

“We have long called for greater rights and pay for working fathers, including properly paid, standalone period of extended paternity leave for fathers; but these should complement, not undermine, the rights of working mothers,” Working Families Chief Executive Sarah Jackson said. “This is a not a zero-sum game.

“We encourage all our employer members to match Shared Parental Pay to enhanced maternity pay, because well paid leave is vital if we are to see more fathers take up their rights, and ultimately to improve equality at work and at home.”


You can view the HR Grapevine’s article on enhanced SPL here.