In a move to break away from the traditional assumption that a woman will stay at home to look after a new baby, in April 2015 the government introduced Shared Parental Leave (SHPL), enabling working mothers and their partners the opportunity to share up to 50 weeks leave between them…

At the time it was suspected that take-up rates of the new scheme would be minimal, due to two factors:

  • The low rate of statutory Shared Parental Pay (SHPP), which currently stands at £139.58 per week.
  • The discrimination fears over offering enhanced pay.

Indeed, a recent employment tribunal decision appears to confirm that employers are right to harbour concerns over the latter.

How the case played out

In the case in question, both the mother and father – who worked for Network Rail -decided to take SHPL after the birth of their child, with the mother taking 27 weeks leave and the father taking 12.

The employer ran a shared parental leave policy, which provided mothers with enhanced pay and fathers with statutory pay. This meant that the mother would receive full pay for her leave period, but the father would only receive the statutory rate of £139.58 per week. The claim, brought against the employer by the father, was on the grounds of indirect sex discrimination.

At tribunal, it was judged that the policy was indirectly discriminatory because on comparison, a man would be treated less favourably in terms of pay than a woman taking the same type of leave, and the reason for this was down to gender.

In this case, the employer was found guilty of the charge and the father was awarded over £28,000 in compensation.

SHPL and SHPP guidance

The government’s published guidance on SHPL and SHPP clearly states that it’s not a legal requirement for employers to enhance SHPP.

However, where they do so, it guides employers to treat men and women in the same way for pay purposes. This will avoid claims for discrimination because the comparator for a male employee on SHPL is a female employee on SHPL and therefore, if the pay awarded is different solely because of their gender, the male is treated less favourably due to this difference.

This stance differs slightly in enhanced maternity pay because a woman is granted ‘special protection’ under maternity leave for giving birth. However, on SHPL the woman has given up her special right to time off, and has transferred it to her partner.

Following the tribunal decision, the employer introduced a new family-friendly policy, removing the enhanced entitlements so that mothers and partners will now receive statutory rates of pay.

Taking this position is legally available to employers, although from your employees’ point of view, it may not appear to be a family friendly position. For those employers who do wish to introduce enhanced SHPP, it’s important that the enhanced rates are available to both female and male employees.