Shared Parental Leave: An Equal Opportunity?

Issue 21

A recent case at an employment tribunal in Scotland has awarded roughly £28,000 to an employee over his employer’s shared parental leave policy.

What is this case about?

Both husband and wife worked for the same employer and informed their employer that they intended to take shared parental leave. It was discovered that mothers and primary adopters were entitled to an enhanced shared parental leave, however, fathers and secondary adopters did not receive the same entitlement.

A grievance was raised on the grounds of sex discrimination by the employee when comparing his pay entitlement to that of his wife. His grievance was heard and after a long period of time rejected by his employer.

The employee then appealed against the decision on the basis of direct and indirect sex discrimination. His appeal highlighted:

the length of time taken to deal with his grievance;

the employer’s choice of comparator, suggesting that the correct comparator is a woman taking shared parental leave in order to care for a child;

that there is no material difference between a father or mother taking shared parental leave;

that the policy reinforces stereotypes that mothers are the primary care givers; and

that no examples could be found of other employers that pay mothers an enhanced rate while paying fathers the statutory minimum.

The appeal was again rejected and the employee made a claim to the employment tribunal. The tribunal decided that the employee was indirectly discriminated against in relation to the application of his employer’s policy.

making an informed decision about a shared parental leave policy;

when considering offering an enhanced payment ensure that it is applied equally and fairly to avoid discrimination claims;

given the nature of the shared parental leave provision, to offer enhancements only to mothers and primary adopters goes against the intended principle of its introduction; and

the majority of employees who would experience detriment as a result of an unequal policy would be male which is contrary to the intention of the shared parental leave provisions.

This is the first decision of its kind and is likely to be considered in future claims of this nature.

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