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Is Shared Parental Leave a ‘sham’ of equality?

In a time when men are encouraged to take a more active role in bringing up their children, shared parental leave should be a great thing – an opportunity for parents to decide which of them should care for their new born, and when. However, it seems that the provisions may not have the teeth to really deliver – for men who want to spend more time with their babies, for women who want to go back to work while their partner stays at home, and for families, struggling in an increasingly tough economic environment. And why this pessimism? The Employment Appeal Tribunal (EAT) has recently decided that an employer is permitted to pay a man on shared parental leave at a rate lower than the maternity pay a female colleague receives during the same period.

When a man brings a direct discrimination claim

Although unusual, it’s certainly not unheard of for a man to bring a direct sex discrimination claim. InCapita Customer Management v Ali and anor [2018] UKEAT 0161_17_1104, Mr Ali argued that his employer’s decision to pay shared parental leave at a rate lower than enhanced maternity pay amounted to direct sex discrimination. He wanted to take shared parental leave so that his wife could go back to work immediately after the compulsory 2 week period that every woman must take following the birth of their child. When he made enquiries with his employer, they told him that he’d receive statutory shared parental leave pay – in other words, significantly less than a female counterpart on maternity leave.

The Tribunal agreed that this amounted to direct sex discrimination

The case is slightly complicated by the fact that Mr Ali had TUPE transferred into the business. The Tribunal agreed with Mr Ali, that the correct comparator was a female colleague who’d transferred into the business, and was on the compulsory 2 week leave period. It agreed that Mr Ali was in the same position as a woman on maternity leave, and that the difference in treatment should not be exempted by S.13(6)(b) of the Equality Act 2010, which permits “…special treatment afforded to a woman in connection with pregnancy or childbirth.

But the EAT disagreed…

The EAT took a wider view, and went back to consider the European legislation from which the domestic legislation derives. It noted the different aims of the Pregnant Workers Directive and the Parental Leave Directive. The former is intended to safeguard the health and wellbeing of the ‘pregnant and birth mother‘, providing for Member States to ensure women can have at least 14 weeks’ maternity leave, paid at not less than the statutory sick pay rate. The latter focusses on the care of the child, not the protection of one or other parent, and makes no reference to pay. On that basis, the EAT found that the comparator was flawed. Mr Ali could not compare himself with a woman on maternity leave – the correct comparator was a woman taking Shared Parental Leave – and the employer’s evidence was that it would have paid her statutory shared parental leave pay, and not enhanced pay. As a result, there was no direct discrimination. The EAT also said, for completeness, that even if Mr Ali’s comparator was correct, s.13(6)(b) would be engaged, meaning that there would be no discriminatory treatment.

What now for working families?

The disagreement between the first tier and appellate tribunals is surprising. Shared Parental Leave is supposed to provide men and women with a level playing field. The fact that employers are allowed to pay men and women differently, removes the element of choice for parents, unless money is no object – and the reality is, that very few families have that luxury in these economically uncertain times. Whilst not part of its decision, the EAT considered an argument advanced by Working Familiesthat there might come a point during the maternity leave period, when its purpose is no longer linked to pregnancy, but to care for the child. It will be interesting to see if there are any future developments in this area. For now though, it feels like a bit of a blow. We have acted for at least 2 fathers who having taken Shared Parental Leave have faced dismissal. Employers are seemingly reluctant to honour the new rights, and the EAT’s decision suggests that we still have a long way to go before Shared Parental Leave achieves its aim of bringing equality.