Shared Parental Leave (SPL) was introduced in April 2015. SPL allows leave to be shared between parents following the birth or adoption of a child. SPL sought to challenge the concept that the mother was always the primary carer by recognising the growing role of fathers in childcare responsibilities.
Traditionally, some employers choose to enhance maternity pay but many have failed to replicate similar enhancements for those taking SPL. Many believe that this has discouraged male workers from taking SPL due to financial constraints on taking long periods of low paid leave. Until recently, this practice was deemed legally acceptable but the recent case of Ali v Capita Customer Management Ltd has thrown this view into question.
Mr Ali wanted to take SPL to care for his new-born child after his wife was diagnosed with postnatal depression and was advised to return to work. However, he was told by his employer that he could only take SPL at the statutory rate despite the fact that his female co-workers were eligible to receive enhanced maternity pay of 14 weeks’ full pay.
The Tribunal decided that this was direct sex discrimination. The Tribunal concluded that parents should be able to decide who assumes the role of primary carer, and that this choice “should be free of generalised assumptions that the mother is always best placed to undertake that role”. The Tribunal highlighted that equality of treatment required the same pay for the same role.
Must employers now offer enhanced SPL payments?
The decision in Ali suggests that failing to replicate enhanced maternity pay for those taking SPL could expose an employer to claims for discrimination. However, it is important to note that as this is a tribunal decision it is not binding in all other cases. For example, in the recent Employment Tribunal case of Hextall v Chief Constable of Leicestershire Police, it was decided that it was not discriminatory.
The conflicting decisions in Ali and Hextall are both being appealed, and it is hoped that the Employment Appeal Tribunal will provide clarity on the position. In the meantime, employers should audit existing parental leave policies and calculate the cost to their business if it were to required to replicate enhanced payments for those taking SPL.
For further information please contact Victoria Middleditch at vmiddleditch@wedlakebell.com