Male rights to enhanced shared parental pay clarified – for now
A recent case has provided employers with helpful guidance as to whether they need to match enhanced maternity pay with equivalent shared parental pay.
The EAT confirmed that the correct comparator for a man on SPL is a woman on SPL, rather than a woman on maternity leave. Therefore the Claimant, who was paid only statutory SPL pay, in contrast to female colleagues on maternity leave who were entitled to enhanced maternity pay, had not suffered sex discrimination since a female on SPL would likewise have received statutory pay.
Employers who pay enhanced maternity pay, but do not pay equivalent shared parental pay, should therefore be reassured by this decision. However, the picture is not entirely clear just yet:
- The EAT commented that it was arguable that after 26 weeks the purpose of maternity leave may change from biological recovery from childbirth (a right of the birth mother) to childcare (an equal right of both parents). At this point there could potentially be a valid comparison between a father on SPL and a mother on maternity leave. On this basis, employers who provide enhanced pay beyond the 26 week point for maternity leave, but not for SPL, may still be at risk of discrimination claims.
- It is unclear why 26 weeks should be the relevant time period —potentially, the same argument could be made for all leave after the first 14 weeks, the period mandated under EU law to allow women to recover from the biological consequences of childbirth. There is some risk that future cases may try to argue this point.
- We are also awaiting the appeal decision in the similar SPL case of Hextall, which could conceivably take a different approach — we will send an update once that decision is handed down.
Action point: Employers who pay more than 26 weeks enhanced maternity pay, but a lower amount of shared parental pay, may want to risk-assess this policy.