The Problem with Shared Parental Pay

Home Articles Discrimination and Equality The Problem with Shared Parental Pay
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Shared Parental Pay was recently considered in one of the first Employment Tribunals decisions on that topic, an employer was found to be operating a discriminatory policy which treated men less favourably than women, which then resulted in a male employee receiving compensation of almost £30,000.

The case showed that there are still some lessons to be learned about equality and pay, however let’s take a look at what happened first.

The Policy In Question

The employer, Network Rail, ran a Shared Parental Pay policy which entitled its employees who were mothers to full pay for 6 months during shared parental leave. Whereas, in the circumstance the employee taking shared parental leave was the mother’s partner, the policy was not as favourable.

National Rail provided only the statutory minimum level that must be provided to the mother’s partner. This is currently £139.58 per week and therefore represented a significant difference in pay.

In this particular case, Snell v Network Rail, both the mother and father of a baby worked for the same employer. The father claimed sex discrimination, saying that he was treated less favourably because he was a man. The Employment Tribunal then declared that the pay policy was discriminatory towards men.

Considerations Raised By This Case

  • Sex discrimination claims are not always made by women

Although the majority of sex discrimination claims are made by women, it is not unknown for a man to claim that his gender has resulted in less favourable treatment. This was a claim of indirect discrimination because the rule that Network Rail applied – that the mother’s partner would receive less pay than the mother on shared parental leave – applied to both sexes but men represent the larger group to be affected.

  • Enhanced maternity pay does not have to mean enhanced shared parental pay

Just because an employer pays enhanced maternity pay, it does not mean that it must also pay enhanced shared parental pay to women. It is likely that Network Rail extended its enhanced pay to women on shared parental leave because it ran an enhanced maternity pay policy. It is a purely business decision to extend it to shared parental leave, and is not required by law.

  • The ‘special protection’ concept that applies to maternity leave does not apply when leave is given away

The concept of special protection applies to women who have given birth in order to reflect their biological position of a mother. This then permits an employer to provide enhanced maternity pay but not enhanced paternity pay to the mother’s partner.

However, the fact that a mother is giving her leave entitlement away as shared parental leave means that the special protection does not apply and therefore highlights the significant difference between paying a mother more than her partner when on shared parental leave.

  • Levelling out shared parental pay

Employers who have a shared parental pay policy similar to Network Rail’s should consider levelling out the pay provisions so that men and women receive the same pay when they take leave. For many, this will mean removing the enhanced pay from women, rather than increasing pay for men. This contractual change can itself create problems and should be approached carefully.

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