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Employees having a baby or adopting a child, and partners of those having a baby or adopting a child may be entitled to Shared Parental Leave and Statutory Shared Parental Pay. New parents can share up to 50 weeks of leave and up to 37 weeks of pay in the first year after a child is born or placed with a family. Parents can also choose to be off work together or to stagger the leave and pay.
In the case of Price v Powys County Council, the EAT has ruled that it is not discriminatory to pay male parents on Shared Parental Leave at a lower rate than women on Adoption Leave.
The background
Mr Price was employed by Powys County Council. When Mr Price and his wife found out they were having their first child, they decided to take Shared Parental Leave so that he could stay at home to care for the baby while his wife returned to work after her two weeks of compulsory maternity leave.
Mr Price was advised by the Council that he would receive Statutory Shared Parental Pay for the duration of his leave. This contrasted with the Council’s Supporting Working Parents Policy, which provided enhanced payments for women taking Maternity or Adoption Leave.
Mr Price considered this difference to amount to direct sex discrimination and brought a claim in the Employment Tribunal. Mr Price identified two comparators:
(1) A female employee on maternity leave receiving enhanced Maternity Pay; and
(2) A female employee on adoption leave receiving enhanced Adoption Pay.
The tribunal rejected both comparators, holding that the correct comparator for Mr Price was a female employee on Shared Parental Leave, who would have received the statutory pay only, like Mr Price.
On that basis, Mr Price’s claim was dismissed.
Mr Price then appealed to the Employment Appeal Tribunal arguing the purpose of Adoption Leave and Shared Parental Leave were both for the facilitation of childcare and not the health and wellbeing of the birth mother, the special treatment that comes with Maternity Leave.
The EAT made the following distinctions between Adoption Leave and Shared Parental Leave:
- Adoption Leave went beyond Shared Parental Leave’s mere childcare facilitation to include matters such as forming parental bond;
- Adoption Leave can be taken before placement of the child, whereas Shared Parental Leave cannot;
- Adoption Leave is immediate on placement, whereas Shared Parental Leave is not – Shared Parental Leave was designed to give more choice to the parents; and
- whilst health concerns between Adoption Leave and Maternity Leave were different, they were still relevant.
For those reasons, the EAT rejected Mr Price’s appeal.
What does this mean for employers?
The decision, in this case, followed the school of thought adopted in a recent combined court of appeal case which dealt with the difference between shared parental leave and maternity leave. Click here to read our blog on that case.
At present, employers are not required to consider offering enhanced shared parental leave in line with enhanced maternity and adoption policies. However, given that the statistics on male employees using shared parental leave remain notably low, forward-thinking employers may consider offering some form of enhanced shared parental pay to attract and retain their employees.
Here to help
If you need help drafting family-friendly policies or need advice in relation to any of the issues raised in this article, don’t hesitate to contact our expert Employment team on 0161 941 4000 or by email.
