Shared Parental Leave and the Risk of Discrimination

April 24, 2015

The introduction of Shared Parental Leave (SPL) in Northern Ireland by the Work and Families (Northern Ireland) Act 2015 presents one of the biggest shake-ups to family leave provisions in recent times. This article considers some of the main changes brought in by the Act and the potential of discrimination arising if employers aren’t careful in how these are implemented.

What is Shared Parental Leave?

Under the 2015 Act, parents whose expected week of childbirth (or adoption) is on or after 5 April 2015 could be able to enjoy shared rights to maternity or paternity leave and pay.

Employees who are eligible for maternity leave are still able to take 52 weeks of maternity leave, as that system remains in place. However, if the parents so choose, SPL allows them to share up to 50 weeks of leave and 37 weeks of pay between the baby’s birth and first birthday. The mother must take the first 2 weeks of leave post childbirth, but after that the parents and their employers can decide how to share the leave and pay. They can take the leave consecutively or concurrently, all at once or in blocks, as long as it does not exceed 52 weeks in total (including the 2 weeks taken by the mother post childbirth). Shared statutory parental pay is paid at the same rate as flat rate statutory maternity pay (£139.58 a week or 90% of average weekly earnings, whichever is lower).

Risk of Discrimination

The Government has stated that the aim of SPL is to give parents more freedom to decide how to look after their child in the first year of his or her life. However, there is a risk that these changes could lead to potential discrimination claims against employers. Many employers currently offer enhanced maternity leave over and above the statutory regime, and do not do so in relation to paternity leave. This has historically not amounted to unlawful discrimination as maternity leave is attached to the biological condition of pregnancy and childbirth.

The recent Tribunal case of Shuter v Ford¹ dealt with this issue. Ford offered its employees enhanced maternity pay but only basic statutory paternity pay so Mr Shuter claimed direct and indirect sex discrimination. The Tribunal found that there was no direct discrimination as Mr Shuter was treated in the same way as a female comparator (such as the civil partner of the mother). A woman on maternity leave was not the correct comparator as maternity leave arose from the need to protect the mother’s health and safety after childbirth. Although there was indirect discrimination, this was justified by the small number of female employees at Ford – enhanced maternity pay was a tactic to attract and retain female employees.

However, the same reasoning may not apply to SPL. After the first 2 weeks, the mother can transfer her leave to the father so it is hard to argue that such leave is linked to the mother’s special biological position. Certainly, European case law suggests that, where the right to leave is granted equally and without reference to the mother’s biological position, the Member State is required to be consistent in its treatment of men and women (Roca Alvarez v Sesa Start Espana ETT SA²).

Nevertheless, in GB, the Department of Business, Innovation and Skills has advised that employers who offer enhanced maternity leave are not obliged to provide the same enhanced pay during SPL. Despite this guidance, there is clearly the potential for gender discrimination against men in this situation, as women will have the choice to opt for either the enhanced maternity leave or SPL. It is also worth noting that employers also risk discouraging parents from taking up SPL if maternity leave offers enhanced pay.

Conclusions

It is important that employers review existing maternity and paternity policies and prepare a Shared Parental Leave policy (covering both birth and adoption situations) to deal with these changes. Employers will also have to consider whether or not to grant enhanced shared parental pay. This could be viewed as a competitive benefit, but estimating the cost could be difficult at this stage due to the unknown level of uptake. (In England & Wales, the Government has anticipated that only between 2% and 8% of eligible parents will take up shared parental leave.³) However, if employers fail to grant enhanced shared parental pay where they already offer enhanced maternity pay, they could potentially open themselves up to the risk of discrimination

¹ [2014] EqLR 717
²[2010] EqLR 238
³ Department for Business, Innovation and Skills, ‘Modern Workplaces: Shared parental leave and pay administration consultation – impact assessment’ (February 2013)

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.