If an employer pays enhanced maternity pay, must it also enhance pay to employees on shared parental leave?
It is for employers to decide whether or not to enhance contractual pay to employees on shared parental leave, where they already pay enhanced maternity pay. There is no statutory provision requiring them to do so. However, when making such a decision, employers should bear in mind the need to avoid any discrimination.
If an employer pays enhanced pay to employees on maternity leave, but not to employees on shared parental leave, there is a risk of sex discrimination claims from male employees who take shared parental leave who consider that they are being treated less favourably than female employees on maternity leave. Such an employer may be able to defend a sex discrimination claim on the ground that a male employee on shared parental leave is treated no less favourably than a female employee on shared parental leave. This was the approach taken by the employment tribunal in Hextall v The Chief Constable of Leicestershire Police ET/2601223/2015, in which it was held that there was no direct discrimination against a man on shared parental leave who received only statutory shared parental pay, where the employer paid enhanced maternity pay, because a woman on shared parental leave who was the same-sex partner of a woman who had just given birth would be treated in exactly the same way.
A different approach was taken by the employment tribunal in Ali v Capita Customer Management Ltd ET/1800990/2016, which upheld the claimant's direct sex discrimination claim. The tribunal found that a policy of paying 14 weeks' full pay to women on maternity leave, but only two weeks' full pay to men taking paternity leave and shared parental leave, amounted to less favourable treatment of men taking leave for the purpose of caring for their child, compared with women taking leave for the same purpose. While s.13(6)(b) of the Equality Act 2010 allows "special treatment afforded to a woman in connection with pregnancy or childbirth", the tribunal found that it was unclear why enhanced pay should be exclusive to female employees for longer than two weeks after the birth.
Hextall and Ali are both first-instance cases at the employment tribunal and therefore not binding on other tribunals. There have not yet been any appeal decisions that set a precedent for other tribunals on how to approach such cases.
Employers that seek to defend an indirect sex discrimination claim by justifying a policy of enhancing maternity pay but not shared parental pay will need evidence to show that the policy is a proportionate means of achieving a legitimate aim. In the employment tribunal case of Shuter v Ford Motor Company Ltd ET/3203504/2013, the employer was able to justify its policy of enhancing maternity pay but not additional paternity pay, as it had clear evidence that the aim of the policy was to attract and retain female employees, and that female representation in the workforce had improved.
An employer considering enhancing pay to employees on shared parental leave should take into account that shared parental leave can be taken in discontinuous periods. The employer would have to decide whether, for example, it will enhance pay for all periods of shared parental leave, for only the first period taken by an employee or for only a certain number of weeks. It should also consider whether or not an employee who has already benefited from enhanced maternity pay will be entitled to a further period of enhanced pay if she swaps to shared parental leave.