Shared Parental Pay and Sex Discrimination

The Employment Tribunal (ET) was recently tasked with deciding whether an employee should receive the same pay entitlements to a female employee taking maternity leave. The employee alleged direct and indirect sex discrimination in relation to the employer’s practices.

The employee transferred to the employer in 2013. Female employees who transferred were entitled to 14 weeks’ basic pay and 25 weeks’ Statutory Maternity Pay whilst on maternity leave. Male employees were entitled to 2 weeks’ ordinary paternity leave and up to 26 weeks’ additional paternity leave which ‘may or may not be paid’.

The employee wished to take leave in order to look after his daughter when his wife returned to work. His employer informed him that he was eligible for Shared Parental Leave, but that they only paid statutory Shared Parental Pay. Subsequently, the employee claimed that it was direct sex discrimination to choose to pay a woman more than a man, as the parents should be able to choose which one of them took leave to care for their child.

The employer argued that, as women have given birth, they have the right to maternity leave and the ancillary right to maternity pay. Therefore, the employee’s comparison was not valid as this biological fact can only apply to women who are pregnant or who have recently given birth.

The tribunal upheld the direct sex discrimination claim and rejected the indirect sex discrimination claim.

In relation to the direct discrimination claim, the tribunal decided that the employee could compare himself with a hypothetical female colleague, that the denial of full pay was due to his sex and that this amounted to less favourable treatment. However, the indirect discrimination claim failed on the basis that the policy relied upon was not gender neutral, so could not be applied equally to men and women.

The case highlights the importance of considering fairness and gender equality in the operation of family friendly policies. Simply choosing to offer full pay to a female employee taking statutory leave and denying to a male employee is likely to result in successful claims of direct sex discrimination, as the only reason for the treatment is gender.