I’m sorry to say that this report is not going to be overly helpful, which I know is a strange way to start an employment update. But the intention is to give employers the heads up with the not so uncommon message of “watch this space”. Sorry about that.
An employment tribunal judge recently decided that Capita’s policy of not enhanced shared parental pay was discrimination against men on the grounds of sex. Whilst Capita paid the same rate of shared parental pay to men and women, it did pay enhanced maternity pay. The judge decided that, aside from the compulsory 2 week maternity leave period which was “special treatment” (in other words, during that period it’s ok to pay women more), maternity leave was to enable the mother to bond and look after a newborn. The judge said that this is not however exclusive to a mother, and that either mother or father can do it, hence the shared parental leave. In his opinion then there should be no difference in pay, and if there were, then that is discrimination.
Remember though, employment tribunal decisions are not binding and therefore that decision does not set any legal precedent. Just as well really because a judge in an earlier case came up with the opposite decision which involved looking at the appropriate comparator. That judge ruled that the comparator was not a woman on maternity leave, but a woman who also took shared parental leave. If the employer treated both parents taking shared parental leave the same when it came to pay, there is no discrimination. This followed from the case that Network Rail lost last year when a male employee successfully claimed discrimination because men were paid substantially less than women for shared parental leave.
Both cases are being appealed to the EAT, so hopefully that will give us some guidance on which employers can rely.