Shared parental leave (SPL) was introduced in 2015. Broadly speaking, it allows mothers or primary adopters to end their maternity leave or adoption leave and share their untaken leave with the other parent. The SPL scheme was championed by the Coalition Government as introducing flexibility for parents and promoting gender equality. Yet uptake has remained low and campaigners are now calling for the scheme to be scrapped.
A key reason cited for SPL’s low uptake is that many employers do not offer the same enhanced rates of pay for those on SPL as they offer to mothers during maternity leave. This was illustrated by recent cases in which fathers sought to argue that they had suffered discrimination as a result of these practices.
In Ali v Capita Customer Management Ltd, Mr Ali argued that Capita’s policy of paying enhanced maternity pay but not enhanced shared parental pay was direct sex discrimination, since female employees on maternity leave would receive more money than male employees on SPL. The case reached the Court of Appeal which held that Mr Ali could not compare himself with a woman on maternity leave because, unlike SPL, the main purpose of statutory maternity leave was not to facilitate childcare, but to address other matters resulting from pregnancy and childbirth which were not shared by the mother’s partner. The correct comparator for Mr Ali was a woman on SPL and since she also would not be entitled to enhanced pay, there was no discrimination.
Subsequently, the Employment Appeal Tribunal gave its judgement in Price v Powys County Council. Mr Price and his wife had initially agreed that they would take SPL so that Mr Price could stay home to care for their new baby while his wife returned to work. After Mr Price uncovered that Powys County Council would only pay him statutory shared parental pay, despite offering enhanced pay to employees on statutory maternity or adoption leave, he decided not to proceed with his SPL application.
Mr Price argued that the Council’s policy of paying employees on statutory maternity and adoption leave at higher rates than those on SPL was discriminatory. He compared himself to both a female on maternity leave and to a female on adoption leave. His claims of direct and indirect sex discrimination were dismissed by the Employment Tribunal. Mr Price appealed the judgement in respect of his direct sex discrimination claim and the case went to the EAT.
Mr Price accepted that in Ali the Court of Appeal determined that the correct comparator for a man on SPL was not a woman on statutory maternity leave because the two types of leave had different purposes. However, the Ali case did not concern adoption. Mr Price argued that, like SPL, statutory adoption leave had the underlying purpose of facilitating childcare so a man on SPL could compare himself to a woman on statutory adoption leave. The EAT considered the underlying purposes of statutory adoption leave and found that they “extend well beyond childcare alone”. Therefore, a person taking SPL is not directly comparable to a person taking adoption leave, as there are material differences between the two types of leave.
The EAT held that a more appropriate comparator for Mr Price was a woman on SPL. Since she would receive the same pay under the Council’s SPL Policy as Mr Price, there would be no discriminatory treatment. The EAT dismissed Mr Price’s appeal.
The scope of SPL has also received criticism. In October 2015, George Osborne, who was Chancellor, announced that SPL and associated pay would be extended to working grandparents, in recognition of the role many grandparents play in childcare. Legislation was intended to follow by 2018, but this never materialised. Consequently, SPL cannot be shared with the child’s grandparents.
Today, organisations including the Women’s Budget Group, Maternity Action, the TUC, the Fawcett Society, the Royal College of Midwifes, and the National Childbirth Trust, have joined in urging the current Government to reform the SPL scheme. The Government is being asked to replace SPL with a new model of family leave, under which both parents will be allocated a ‘use it or lose it’ leave entitlement. It will be interesting to see how this matter progresses.
If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.
