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Shared Parental Leave was introduced in April 2015 and allows mothers to share their maternity leave with their partners, in an era where childcare responsibilities are no longer seen as the responsibility of the female. This applies to couples who are adopting, same-sex couples, cohabiting couples, and couples bringing up a child together even if the baby is from a previous relationship. Since its introduction however, take up of Shared Parental Leave appears to have been relatively low.

In the case of Ali v Capita Customer Management Ltd in the Claim form presented in June 2016, the Claimant made complaints of direct and indirect sex discrimination and victimisation.

Mr Ali was a former Telefonica employee whose employment transferred under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) to Capita. His terms and conditions of employment were protected by TUPE and this meant that Telefonica’s policies applied to him. Both the Claimant and his wife worked for the same company.

Under the maternity policy, female employees taking maternity leave are entitled to enhanced maternity pay. The policy gives female employees with 26 weeks’ service the option of 14 weeks’ enhanced maternity pay, followed by 25 weeks at the rate of statutory maternity pay. Under the Telefonica policy, a male is entitled to two weeks on full pay during their paternity leave. As such, the Claimants’ entitlement as a male was substantially less than a female’s.

The Claimant raised that he was only entitled to take two weeks’ paid leave following the birth of his daughter in April 2016. A female in that situation would have been able to take 14 weeks’ pay following the birth of a child. The Claimant accepted there was a material difference in circumstances of a hypothetical female employee for the first two weeks of that leave. This was because of the two week period of compulsory maternity leave a female must take after giving birth.

He was paid for the two weeks and his complaint was that, in the following 12 weeks, when he wanted to take leave with pay in order to care for his child, he was deterred from doing so. A relevant fact here was that his wife was suffering from postnatal depression and medical advice suggested she return to work and that he care for the baby. He was deterred from taking leave because he was informed by his employer that he would not receive full pay for that period of time.

The assumption made that as a father caring for his baby, he was not entitled to the same pay as the mother performing that role. He felt this took away the choice he and his wife wanted to make as parents. This was directly discriminatory on the grounds of sex.

Whilst this case is only an Employment Tribunal case and therefore not binding on future decisions, it does suggest the interpretation of what the aim of shared parental leave is – to promote a gender balance for childcare responsibility.

What does this mean for you as an employer?

There is no binding case law that specifically requires employers to enhance shared parental pay if they enhance maternity pay, and it’s not required by legislation. However, it is a good time to review the policies that you have in place and identify any anomalies.  Our experience is that most SME’s are likely to pay in accordance with the statutory entitlement/rates.

In order to ensure employee engagement, retention and reduce the risk of a sex discrimination claim, any entitlement in relation to maternity/adoption/shared parental leave should ideally be consistent for males and females in order to ensure equality and fairness.

If you have any questions or concerns please contact your HR Consultancy Team.