When shared parental leave was introduced back in April 2015, many commentators questioned how many employees would take advantage of this new right.  Whilst the new right allowed mothers and their partners to share up to 50 weeks shared parental leave, it only provided that employees taking shared parental leave would be paid at the statutory rate (currently £139.58 per week) for 37 weeks’ and the balance of 13 weeks’ unpaid.  These relatively low rates of pay were seen as discouraging take up.

One area which was left unanswered when shared parental leave was introduced, and which many thought may assist in encouraging take up, was the extent to which employers would have to extend their maternity pay schemes.  Many employers provide enhanced payment benefits for staff on maternity leave and if those were extended to those on shared parental leave, the take up rates may increase.

The shared parental leave regulations were silent on this point.  As such the risk to employers not mirroring any enhanced maternity pay for those on shared parental leave was likely to come in the form of discrimination claims.

In the recently reported case of Snell v Network Rail Infrastructure Limited, an employment tribunal has awarded just under £30,000 to a male employee for sex discrimination on the basis that his employer’s policy of offering enhanced shared parental leave pay to mothers but not to fathers or the mother’s partner amounted to sex discrimination.

To some extent this case should be treated with a degree of caution.  It is only a decision of the employment tribunal and therefore not binding.  In addition, Network Rail ultimately chose not to contest the claim.  As such, the tribunal didn’t have to consider the various legal arguments as to why their actions might or might not constitute discrimination.  In addition, the case looked at the issue of whether the policy of offering enhanced shared parental leave pay to mothers but not fathers was discriminatory.  It didn’t look at the issue of whether offering enhanced maternity pay but not mirroring that for shared parental leave pay was discriminatory.  That in our experience tends to be where the real differences in treatment can be.

Nonetheless, the case does show that claims relating to shared parental leave pay are starting to make their way through the tribunal system.  As such now is a good time for employers to review their shared parental leave polices and compare them with their maternity leave policies.  Where there are differences in treatment either with shared parental leave pay or differences in the level of maternity pay compared with shared parental leave pay, employers will need to consider the reason for these differentials.  Careful thought will need to be given as to how such differences could be objectively justified if they’re challenged by employees.  Potential justifications may, depending on the make-up of the workforce, include promoting the recruitment, retention and development of women within the workforce.   Where these differences can’t be objectively justified careful consideration will need to be given as to how that is addressed.

For a review of your shared parental leave policy and how it could be impacted by the Snell case, please contact Nicola Whelan on 01628 470007 or Nicola.whelan@moorcrofts.com