If organisations want to recruit and retain the best staff for their business, then they must understand the needs of working parents and their policies and workplace culture should reflect that.

Many companies now offer full pay to staff on maternity leave and paternity leave for several weeks, plus other benefits.  Diageo, responsible for brands such as Guinness, Baileys and Smirnoff vodka, have just launched a policy that will entitle all parents, regardless of gender, to 52 weeks of parental leave, with 26 weeks of it on full pay.  In addition to generous parental leave provisions, tech giant Google also offers employees, who are new parents, hundreds of pounds worth of vouchers for takeaways, during the first few weeks with their new-born.

Given that increasingly more grandparents are providing childcare for their grandchildren, the government was also planning to extend shared parental leave to grandparents, however, this has been shelved for the time being, whilst a wider review of shared parental leave policy is undertaken.  It would appear that in the 3 years since its introduction, the uptake of the right to shared parental leave, amongst eligible parents, is considerably low.

That said, we have recently seen 2 notable cases in the tribunal system concerning this topic.

Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management Ltd.  These cases were heard on 1 May 2019 at the Court of Appeal.   Both were heard together, because they both concerned the same central issues, surrounding shared parental pay and maternity benefits. The cases questioned whether the failure to equalise shared parental pay with enhanced maternity pay could amount to sex discrimination.

Various claims were brought by the male claimants in these cases, including direct and indirect discrimination and equal pay claims. The Court decided that men on parental leave and women on maternity leave are not in comparable positions, because the purpose of maternity leave is to provide for the health and safety of the mother following pregnancy and childbirth. Shared parental leave, by contrast, is to enable parents to look after their new-born children.  Women need special treatment in connection with pregnancy and childbirth, therefore the Court found that there was no discrimination and all claims were dismissed.

Enhanced protection for women because of pregnancy and childbirth is of course, of vital importance. However, it could be argued that enhanced company maternity pay disadvantages women where there is no equivalent shared parental pay provision. This is because it’s less viable for the father to take shared parental leave where the mother is paid more to stay off. The more employers who pay this sort of enhanced benefit, the more likely it is for women to be out of the workplace for longer, arguably cutting down their chances for promotion and career progression. So, what’s the answer? For more employers to offer enhanced shared parental pay or to remove enhanced contractual maternity pay? Given the slow uptake of shared parental leave, and in the interests of trying to do the best for working parents, perhaps now is the time for employers to start offering enhanced benefits, also to those taking shared parental leave.

For employment law advice around shared parental leave, contact Matt Jenkin.