Do you need to offer enhanced shared parental leave pay?
In the recent case of Price v Powys County Council, Mr Price brought a claim for sex discrimination against the council for failure to provide enhanced shared parental leave pay, although they provided enhanced pay to employees on maternity or adoption leave.
The Employment Tribunal considered the two aspects separately. The claim that Mr Price should be paid enhanced shared parental leave pay because female employees on maternity leave receive enhanced pay, was rejected. This rejection was in accordance with the judgement from Capita Customer Management Ltd v Ali. In that case, the Court of Appeal addressed the question as to whether a male employee on shared parental leave should be entitled to the equivalent of enhanced maternity pay.
The Court of Appeal found that that there was a significant difference between the purpose and requirements of maternity leave and shared parental leave and therefore found that a male employee on shared parental leave was not entitled to the enhanced rate that a female employee would receive whilst on maternity leave.
In the claim brought by Mr Price, the Tribunal and Employment Appeal Tribunal focused on whether Mr Price could compare himself with a female employee on adoption leave. The main argument put forward by Mr Price was that adoption leave and shared parental leave were similar as the purpose of the leave was to facilitate childcare.
The Tribunal and EAT found that there were significant differences between shared parental leave and adoption leave which were:
- the ability to start adoption leave prior to the child being placed with the employee;
- adoption leave is an immediate entitlement as soon as the child has been placed with the employee;
- the requirement for the employee to obtain their partner’s agreement to end adoption leave so that they can commence shared parental leave; and
- the ability to take shared parental leave in separate blocks whereas adoption leave must be taken in one continuous block.
Therefore, the EAT found that Mr Price could not be compared with a female employee on adoption leave and the correct comparator would have been a female employee on shared parental leave. As a female employee on shared parental leave would have been entitled to the same pay as Mr Price there was not any discriminatory treatment.
This is once again good news for employers.
If you have any queries in relation to the above or require advice on any other employment law related issue please contact the Employment team at Downs Solicitors.