SPL was introduced to enable families to make choices about who cares for the child during the first year of life, and to encourage fathers to take a more active role in bringing up their children. It aimed to relieve the childcare burden on female employees. Contributor Nicola Ihnatowicz, Partner, Employment & Pensions department – Trowers & Hamlins LLP.
In practice though, very low numbers of eligible fathers have taken up SPL, in part because for many it is unaffordable. Employers can rest assured for now that legally their shared parental pay arrangements do not have to be enhanced as a failure to do so will probably not be discriminatory. However, in the modern workplace, this issue isn’t going to go away as families demand that their employers cater for the more flexible ways in which they chose or are obliged to divide or share their childcare.”
The Court of Appeal has held in Capita Customer Management Ltd v Ali that a failure to pay men enhanced shared parental pay is not directly discriminatory, while in Hextall v The Chief Constable of Leicestershire Police it has held that it is not indirectly discriminatory either. Although not good news for new fathers, these decisions provide welcome clarity for employers on the longstanding issue of whether to a failure to enhance shared parental pay is discriminatory, and employers will be able to continue with their existing arrangements without falling foul of the law.
In Capita Customer Management Ltd v Ali the Court of Appeal found that it was not direct discrimination against Mr Ali, a new father whose wife had post-natal depression, to be allowed to take only two weeks’ leave on full pay, when female staff were entitled to 14 weeks’ enhanced maternity leave. It held that the purpose of maternity leave is to assist the health of the mother, while the Parental Leave Directive (which does not provide for paid leave) provides for the care of the child. The appropriate hypothetical comparator for Mr Ali was an employee caring for her child, and the relevant leave to be considered was shared parental leave, not maternity leave. This meant that Mr Ali was not discriminated against on grounds of sex by being entitled to shared parental leave (SPL) at the pay rate appropriate for such leave.
Meanwhile, in Hextall, Mr Hextall, a police constable, took SPL from 1 June to 15 September 2015 to care for his second child, while his wife went back to running her own business. During that period he was paid at a rate of £139.58 per week. Mr Hextall claimed that he had been unlawfully discriminated against as a man because, had he been a female police constable on maternity leave he would have been entitled to be paid his full salary for the period over which he took SPL.
In order to bring a claim for indirect discrimination a claimant has to identify a provision, criterion or practice (PCP) which puts them at a particular disadvantage in relation to people who do not share the claimant’s characteristic (in this case the protected characteristic being Mr Hextall’s sex). Mr Hextall relied on the PCP of “paying only the statutory rate of pay for those taking a period of shared parental leave”. The next thing to identify is the particular disadvantage alleged, and then a comparative exercise must be carried out to decide whether the PCP puts men at a particular disadvantage when compared with women in no materially different circumstances.
The Court of Appeal dismissed his claim. It found that there was no direct discrimination complaint as there was no relevant less favourable treatment. The Court also dismissed his claim for indirect discrimination because a woman on maternity leave getting enhanced maternity pay could not be a valid comparator for a man on SPL getting shared parental leave pay. The relevant PCP did not put men at a particular disadvantage when compared with women.
