Shared parental leave and sex discrimination

The first case about the amounts paid to men and women on shared parental leave has been decided by an Employment Tribunal in Glasgow. The claim was made by a father, Mr Snell. He and his wife (the mother) both worked for Network Rail and intended to share their leave (with the mother taking 27 weeks and the father taking 12 weeks).

Network Rail had created a Family Friendly Policy, into which it had combined rules about maternity, adoption, surrogacy and shared parental leave. This described all leave, other than the two weeks’ compulsory maternity leave, as “shared parental leave”. As a result, the mother (or primary adopter or first surrogate parent) was entitled to 26 weeks’ full pay (described by the policy as “ordinary shared parental leave”) while the father was only entitled to be paid at the statutory rate.

Before the hearing, the father had withdrawn his direct sex discrimination claim. (This was apparently on the basis that a female partner of the mother would have been treated the same way, rather than the exemption in the Equality Act 2010 in relation to unequal pay in connection with pregnancy or childbirth.) Network Rail had initially contested indirect discrimination and suggested that any disadvantage could be justified, based on a legitimate aim of recruiting and retaining women in a male-dominated workforce. Before the hearing, indirect discrimination was conceded, so the Tribunal was left to determine remedy only.

As a result, this decision provides little to advance our thinking about whether differences in pay between women on maternity leave and men on shared parental leave would be indirect sex discrimination and (if so) whether that could be justified. It is worth remembering that, in the statutory pay scheme, the Government allows for a difference of treatment (albeit that the six-week period of different treatment is much shorter than most corporate schemes and, as a result, probably easier to justify).

If, however, you are an employer which has combined its family leave policies into a single “family friendly” policy (as Network Rail had done), we would recommend that you seek advice. It may be easier to justify a difference in treatment in relation to pay if that difference is reflected in different types of leave.

Snell v Network Rail Infrastructure Ltd, ET case no.S/4100178/2016 – judgment available here