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Shared parental leave is now three years old. It brought with it a question about shared parental pay and whether it is necessary to enhance it if an employer enhances maternity pay. Some commentators have argued that enhancing maternity pay (for women) without enhancing shared parental leave (for men) could amount to sex discrimination.

The Employment Appeal Tribunal has recently considered the position.

Hextall v The Chief Constable of Leicestershire Police 

After taking paternity leave and a further week’s paid holiday, Mr Hextall returned to work. In the meantime, his wife was advised to return to work earlier than originally planned to assist her recovery from post-natal depression. Mr Hextall decided to take shared parental leave to care for the baby and to enable his wife to return to work.

The employer paid enhanced maternity pay for 14 weeks but only statutory shared parental pay. Mr Hextall compared himself to female colleagues who were taking maternity leave and being paid an enhanced rate. He requested that he should also receive full pay for statutory leave which essentially serves the same purpose. He was informed by the employer that he was only entitled to statutory shared parental pay, in the same way that a female taking shared parental leave would be.

Mr Hextall brought a claim in the employment tribunal for sex discrimination. Tribunal found that Mr Hextall could be compared with his female counterparts taking maternity leave, setting out that beyond the initial 2 weeks after the birth, there is no discernible difference between the two types of leave, especially where men are being encouraged to play a greater role in caring for their babies in modern times. If the parents decide that the father is best suited to undertake that role he should be entitled to an enhancement if the employer enhances maternity pay for women for the equivalent period.  The family role Mr Hextall intended to perform was not a role exclusive to the mother. Enhancing maternity pay was not special treatment in connection with pregnancy and childbirth – it was for caring for a newborn baby. Therefore, there should be equality in relation to pay for Mr Hextall to access the same benefits for performing the same role.

The employer appealed to the EAT.

Decision

The EAT found that the Employment Tribunal had wrongly applied the law by failing to consider the purpose of maternity leave and pay correctly.

It set out that maternity leave is linked to the health and wellbeing of a woman following pregnancy, confinement and childbirth (a condition unique to women).  The rate of maternity pay offered by any particular employer is inextricably linked to those circumstances.

The EAT concluded that Mr Hextall’s circumstances were not comparable within the meaning of the Equality Act 2010 to those of a woman who had recently given birth. Whilst both would be taking leave to care for their child, the purpose of shared parental leave is different to that of maternity leave.

Comment

If a mother curtails her entitlement to maternity leave and pay, before she has used her full entitlement, shared parental leave and pay can be claimed for any remaining weeks.

The above case clarifies that employers can enhance maternity pay without applying a similar enhancement to shared parental pay.

A new £1.5m publicity drive in relation to shared parental leave was launched in February, after analysis showed that the take up could be as low as 2% of eligible parents. The government is committed to doing what it can to ensure that both parents have opportunity to be involved.

If you have any queries in relation to shared parental leave or have any other HR queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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