Shared Parental Leave and Enhanced Maternity Rights

Is it directly or indirectly discriminatory that men are paid less when on shared parental leave than women on maternity leave? In a ground-breaking decision, the Court of Appeal has answered that burning question in the negative.

Women are entitled to 52 weeks’ leave after giving birth, 39 of them paid. The first six of those weeks are paid at a higher rate than the succeeding 33. Shared parental leave is available for both parents where a new mother sacrifices part of her maternity leave and splits the remaining period with her partner. Shared parental leave is, however, always paid at the lower of the two rates available in respect of maternity leave.

Two fathers argued that those provisions, and the way in which they were applied to them, amounted to either direct or indirect sex discrimination. Their claims failed after progressing through the tribunal system, but both men appealed.

The first case concerned a father whose employer granted new mothers full pay for the first 14 weeks of their maternity leave, an arrangement that was substantially more generous than the statutory minimum. The employer’s policy in respect of shared parental leave, however, mirrored the statutory scheme, with the result that the father could only qualify for leave at the lower rate of pay. The father submitted that that outcome discriminated directly against him because of his sex.

The second case concerned a police officer who worked for a force which afforded new mothers 18 weeks of maternity leave on full pay. The force’s policy again mirrored the statutory scheme in respect of shared parental leave. That policy was said to cause a particular disadvantage to men and to amount to indirect discrimination.

In ruling on the first case, the Court noted that, in order to succeed in his claim, the father had to establish that he had been treated less favourably than a comparable female employee on the basis of his sex. However, he faced a major hurdle in that Section 13(6)(b) of the Equality Act 2010 required the Court to disregard any special treatment afforded to mothers in connection with pregnancy or childbirth when comparing the father’s treatment with that of a hypothetical female co-worker.

The Court found that the father’s circumstances were in any event materially different from those of a mother on maternity leave. Where one of the primary purposes of maternity leave is to assist mothers in recovering from the physical and psychological impact of childbirth, the father was wrong to argue that its only purpose, after the first two weeks of compulsory leave, is to help with childcare.

The proper comparator for the purposes of a direct discrimination claim was therefore not a woman on maternity leave but a woman on shared parental leave. There was, on that analysis, no difference between his treatment and that of such a co-worker.

Turning to the second case, the Court found that the officer’s claim was not properly categorised as one of indirect discrimination. Rather, his argument was that his terms of work had been modified by the sexual equality clause which is implied by the Act into all terms of work. That, he submitted, entitled him to take leave to care for his newborn baby at the same rate of pay as a mother taking maternity leave.

The Court, however, found that that argument was bound to fail because the Act provides an exception, in that the implied sex equality clause has no effect in relation to terms of work which afford special treatment to women in connection with pregnancy or childbirth. The Court noted that, in any event, a claim for indirect discrimination cannot be brought where the claim is, in reality, an equal terms claim, even if the latter claim only fails due to the application of the statutory exception.

In dismissing both men’s appeals, the Court concluded that the different rates of statutory pay afforded to new mothers and their partners following the birth of a child do not constitute unlawful discrimination, whether direct or indirect.

Companies Collapse and Employees Suffer – But the Law Does Provide Protection

When companies collapse without warning, shocked employees can be left high and dry. However, as a case concerning a troubled package holiday company showed, those who swiftly take legal advice are not without Government-backed protection.

holiday sunsetThe company had encountered severe financial difficulties, in part due to the impact of terrorist attacks on some of its most popular holiday destinations and the falling value of sterling against other currencies. Within minutes of the company entering administration, 94 of its 151 staff were informed of their instant redundancy.

After proceedings were launched on behalf of one of those who lost their jobs, an Employment Tribunal (ET) noted that, by virtue of Section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, the company was, at least 30 days before the redundancies took effect, required to consult with appropriate workforce representatives with a view to avoiding or reducing the number of dismissals.

In clear breach of that provision, there had been no consultation whatsoever before the redundancies were announced out of the blue. The company did not recognise any trade union so there was no workforce representative body that could be consulted. The company’s financial position had not deteriorated so sharply as to render consultation impossible and the likelihood was that employees had simply been kept out of the loop as its fortunes spiralled downwards.

In the circumstances, the ET found that the employee was entitled to a protective award, comprising 90 days’ remuneration. That was the maximum award permitted by Section 189(3) of the Act, but the ET could detect no grounds for reducing it. In the event that the company was insolvent, the award would be paid by the Secretary of State for Business, Energy and Industrial Strategy, subject to the maximum liabilities specified under Section 184 of the Employment Rights Act 1996.

Disability Discrimination – Employers Don’t Have to Shut Their Eyes to Reality

Discriminating against sick employees is obviously unacceptable, but that does not mean that employers have to ignore health difficulties in deciding whether someone is fit enough to perform a particular role. The Court of Appeal succinctly made that point in the case of a chemical engineer whose medical problems resulted in him being overlooked for an overseas posting.

The man had double below-knee amputations and suffered from type 2 diabetes, hypertension, kidney disease, ischaemic heart disease and morbid obesity. At a client’s request, his employer initially selected him to work on a project in the Middle East. However, following a medical assessment, that decision was reversed on the basis that his deployment to a remote location would give rise to a high risk of medical complications. The employer’s director of operations acknowledged that both he and its client would be disappointed, but said that the duty of care owed to him as an individual came first.

His complaints of direct and indirect disability discrimination, and a failure to make reasonable adjustments in order to cater for his health problems, were rejected by an Employment Tribunal (ET) and that decision was subsequently confirmed by the Employment Appeal Tribunal.

In dismissing his challenge to that outcome, the Court noted that an employee’s health is not always entirely irrelevant to their ability to do a particular job. The reality was that a hypothetical comparator at similar medical risk would have been treated in exactly the same way even if they did not share the man’s particular disability.