Pay for shared leave not discrimination, rules EAT

The Employment Appeal Tribunal (EAT) has held, in Price v Powys County Council, that a man on shared parental leave (SPL) who was paid less than a woman on adoption leave (AL) was not discriminated against based on his sex.

In this case, the claimant inquired as to what pay he would receive should he take 37 weeks of SPL following the birth of his child. After being told he would be paid at the statutory rate, he decided not to proceed.

The organisation had a policy in which employees could receive enhanced maternity and adoption leave pay; in other words, they were paid more than the statutory minimum and, therefore, more than a man on SPL.

The claimant later brought a claim of direct sex discrimination to the Employment Tribunal (ET). In bringing his claim, he identified two possible comparators:

  • A female employee on maternity leave who was receiving maternity pay
  • A female employee on AL receiving adoption pay

The ET dismissed his claims when considering both comparators.

When looking at the first comparator, the ET outlined that his being on SPL was materially different to a woman on maternity leave. Whilst the ET did accept that there were more comparisons between him and the second comparator, and addressed five specific points put forward by the claimant, they ultimately held that the positions were not materially the same, meaning his claim had to fail.

The claimant appealed against the rejection of the second comparator to the EAT but this too was dismissed. The claimant argued that as the purpose of both forms of leave was to facilitate childcare, a comparison should be possible for the purposes of the law.

The EAT found that that the purposes of AL went beyond childcare – as outlined in the Adoption and Children Act 2006, AL is important for the forming of a parental bond following the placement. As such, it was different to the position of SPL.

They then went on to evaluate the five material differences that the claimant had put before the original ET, which had been dismissed, to see if the lower court had erred in its ruling. Their conclusions were as follows:

  • The claimant had argued that neither of the forms of leave were compulsory, which the ET had disagreed with, finding that AL was compulsory. However, the EAT concluded that AL was not actually compulsory, meaning the ET had erred here.
  • The ET had found the fact that AL could commence before the placement, but SPL could not, meant that the two forms of leave were not comparable. The claimant had disputed this, saying the fact that AL could commence 14 days earlier than SPL was not significant in the context of leave that could last 52 weeks. However, the EAT agreed with the reasoning of the ET.
  • The ET had found that AL was an immediate entitlement upon the child’s placement, but SPL was not. The EAT also agreed with this.
  • The claimant argued the fact that SPL could only be taken with one partner’s agreement to give up maternity leave was comparable to AL, where one partner had to agree to be the ‘main adopter’. However, the EAT found this argument problematic; a parent deciding not to be the ‘main adopter’ should not be seen as giving up an entitlement.

The ET had also found that the two forms of leave work differently, with the aim of giving parents greater choice when it comes to childcare. The EAT agreed.

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