Shared parental leave – Employment Tribunal decision on enhanced pay

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The Scottish Employment Tribunal found in Snell v Network Rail Infrastructure Limited that a shared parental leave policy that provided for enhanced payments for mothers but not for fathers was indirectly discriminatory.

Facts

Mr Snell worked for Network Rail and, whilst his wife was pregnant, requested to take 12 weeks shared parental leave (‘SPL’). He then discovered that his pay during this leave would be at the statutory rate, whereas mothers taking SPL would be entitled to 26 weeks’ enhanced pay. This was because the Network Rail policy provided for enhanced payments for ‘mothers’ (and primary adopters) taking SPL but not for ‘fathers’ (and partners and secondary adopters).

Mr Snell raised a grievance that Network Rail’s policy amounted to sex discrimination. His grievance was rejected, as was also his appeal against the decision. Network Rail maintained that it was treating all employees who were sharing leave with the mother the same; the comparator for a man sharing leave with the mother was a woman sharing leave with the mother and, both the man and the woman received the same payments. Network Rail also stated that it was paying enhanced pay to mothers taking SPL in an effort to retain female employees in a male dominated workplace.

Employment tribunal

Mr Snell then brought claims against Network Rail in the Employment Tribunal. He claimed that the amount of shared parental pay received by fathers as compared with mothers amounted to direct and indirect sex discrimination. In terms of the indirect discrimination claim, Mr Snell identified the particular disadvantage as fathers receiving statutory pay only and not enhanced pay. Network Rail argued that there was no such disadvantage and, even if there was, it could be objectively justified as a proportionate means of achieving a legitimate aim, which was the recruitment and retention of women in a male dominated workforce.

During the course of the proceedings, Mr Snell dropped his claim of direct sex discrimination and Network Rail decided not to contest the claim of indirect discrimination. (Network Rail also ‘levelled down’ the enhanced pay to mothers taking SPL so that mothers and fathers were treated the same under the policy.) Therefore, the ET made a finding of unlawful indirect discrimination.

Comment

The case of Snell v Network Rail is only an ET decision, which is not binding on other Tribunals. However, since the issue of SPL and the equalisation of benefits between mothers and fathers is a vexed one, it is attracting much interest and commentary.

Since the introduction of statutory SPL, EEF has been of the view that it would most likely be discriminatory to distinguish between ‘mothers’ and ‘fathers’ in terms of enhanced payments paid for shared parental leave. This view is supported by BIS and ACAS guidance.

It is unfortunate that the discrimination issues raised in Snell v Network Rail were not debated in full at an ET hearing. To date, the general view has been that treating fathers less favourably than mothers under a SPL policy would be direct discrimination. However, given that the direct discrimination claim was dropped (presumably in return for Network Rail’s concession on indirect discrimination), the ET did not hear the company’s arguments against this, and on the appropriate comparator. Similarly, in respect of indirect discrimination, we do not know what the detailed arguments on particular disadvantage and objective justification would have been.

Generally, the case may be of limited assistance on the issue of enhanced terms for mothers under employers’ family leave policies. In EEF’s experience, most employers provide mothers and fathers taking SPL with the same pay (often statutory only), and so would not be facing the type of claim brought by Mr Snell. In fact, the real issue for employers tends to be whether they are obliged to enhance benefits for fathers taking SPL where they do so for mothers taking maternity leave.

See EEF’s guidance on enhancing SPL rights on our website - Shared parental leave and pay. There we consider the risks of enhancing statutory entitlements for employees on maternity leave while providing statutory entitlements only for employees (both mothers and fathers) on SPL. In summary, we think that a direct discrimination claim is unlikely to succeed, as the father on SPL should be compared with the mother on SPL and not the mother on maternity leave, and that an indirect discrimination claim would depend on the circumstances, including the make-up of the workforce and the number and breakdown of employees taking SPL. The Snell v Network Rail does not seem to affect this advice. However, it may only be a matter of time before this matter is litigated.

Author

Principal Legal Adviser

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