Pay Equality For Fathers On Shared Parental Leave
Already billed as one of the key employment law changes of the year, Shared Parental Leave promises enhanced flexibility for all parties. Yet, as is common with employment law, also brings about administrative headaches and fears of tribunals claims.
Employer clients who currently provide enhanced contractual maternity pay for their female employees have already asked me if they will have to match that pay for female and male staff who are taking Shared Parental Leave.
The answer, in short, is that legally, you don’t have to. But, if you want to promote equality and harmonious relationships in your firm, you should consider doing so.
With Shared Parental Leave comes Shared Parental Pay – a flat rate equivalent to the rate of Statutory Maternity Pay which, from 5 April 2015, will be £139.58 per week. The government’s view is that there is no need for additional Shared Parental Pay. As such, the draft Regulations only entitle parents to the specified rate, with no obligation to mirror any existing enhanced maternity pay schemes.
You’d be forgiven to think it unfair that there is no encouragement for employers to match Shared Parental Pay with existing arrangements for enhanced maternity pay. After all, the job at home is the same for mum and for dad: to look after the children. Also enhanced Shared Parental Leave for women enables them to share their leave and return to work earlier. This can only be an plus for employers who have female key workers and whose long-term absence in the workplace can be problematic.
There is a real risk that men will feel that they are treated differently, even unfairly, if their female colleagues receive enhanced contractual maternity pay, and they only get the standard, flat rate. They might even consider bringing a claim for discrimination.
The Equality Act 2010 created specific protection for women during pregnancy and maternity leave. This is to protect a woman’s biological condition and to recognise the special relationship between a mother and her new born baby. As such, direct sex discrimination law states that if a man wishes to bring a claim, “no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.” As such, I doubt that a man would succeed in making a sex discrimination claim by comparing his situation on Shared Parental Leave to that of a woman on maternity.
However, a man would almost certainly be able to demonstrate less favourable treatment if he is paid the standard rate of Shared Parental Pay while his women colleagues taking Shared Parent Leave enjoy enhanced contractual pay. As such, matching pay in this regard would be wise.
In this situation, businesses should make sure they afford contractually enhanced parental pay to both their male and female staff or risk falling foul of workplace discrimination law.
As well as direct discrimination, men may consider bringing claims of indirect discrimination where there is a practice, (enhanced maternity pay only), which puts them at a disadvantage compared to women.
However, this is less likely to succeed as indirect discrimination can be defended when the practice is objectively justified; for example where the aim is to promote the recruitment and retention of women in a highly male-dominated workplace.
But I truly hope that employers will see this issue in the round. The contractual maternity pay that employers save when a woman opts for Shared Parental Leave could be used to pay enhanced Shared Parental Pay for all employees – promoting equality and fairness in the workplace for everyone.
A few progressive employers, most notably in the civil service, have already announced that they will provide enhanced parental pay. And although not all employers will be able to afford to do this, only by offering contractually enhanced pay for both men and women taking Shared Parental Leave will there be real choices for families as to who stays at home and cares for their baby in the first 12 months.
As part of our Equality Campaign, From Here to Paternity, we will be running an Equality Helpline which will run from 4pm to 6pm on Tuesdays and Thursdays, during February. Employers and employees who want to discuss how to deal with maternity, paternity and Shared Parental Leave can call 01273 609911 for a free half hour’s legal support which will be followed by written advice.
We are also running a seminar for employers and managers on Shared Parental Leave on Wednesday 18 February in partnership with Brighton and Hove Chamber of Commerce. To find out more details and to book a place, visit here.