Shared parental leave and unequal pay

By 02/03/2015 January 7th, 2019 Employment Law

Last week I attended an employment law seminar covering shared parental leave (SPL) which will come into effect in the new financial year. To put it simply SPL is a family friendly government initiative to provide parents with more choice in how they look after their child in the first year after birth or adoption.

Focussing on the birth of a child and maternity leave, mothers are currently entitled to 52 weeks leave but under SPL a mother will be able to share up to 50 weeks of her leave with her partner, providing he/she qualifies. SPL is optional for employees, some might be happy to take maternity leave but others might want to share their leave with their partner – it will probably depend on which option is financially better for the family. This in turn will depend on salaries and how much organisations pay employees taking maternity leave and SPL.

Statutory maternity pay and statutory shared parental pay

Statutory maternity pay (SMP) is currently paid at 90% of a woman’s average earnings for the first 6 weeks, then a flat rate of £139.58 per week (or 90% of average weekly earnings, if it is lower) for the remaining 33 weeks. The same flat rate or 90% of earnings if it is lower will be paid as shared parental pay (ShPP) to those taking SPL. It seems fine in principle, but many organisations both large and small have existing provisions in place to provide women with an enhanced maternity pay package.

Enhanced maternity pay but statutory shared parental pay

The point about paying employees different rates for maternity pay and ShPP came up in the employment law seminar, it was noted that this is not considered discrimination… cue gasps from the HR audience! “At the moment!” came the quickly added statement from the lawyers, as there is no case law.

Hypothetically, lets say your organisation offers an enhanced maternity package but doesn’t offer an enhanced SPL package. Fast forward to April 2015 and one of your employees, John, requests SPL. You’ve done done your research, you send John a letter congratulating him on his news, outlining the SPL and stating that he will be entitled to £139.58 per week ShPP. John isn’t happy and knocks on HR’s door to ask why he is being paid less than his colleague Louise, who is on maternity leave. The current legal position appears to be that there is no issue here but it hasn’t been tested yet.

Women’s rights and equal pay have been top of the agenda for businesses, HR and government for so many years, but there could now be instances where predominately men (unless the mother is in a same-sex relationship) are going to be paid less than women for taking leave to be with their baby.

My guess is that John will take issue with being paid less than Louise and exercise his right to take this matter further (cynically I suspect it will end up at the EU). Is there a chance that John could succeed in his claim? If John did succeed would organisations offering an enhanced maternity package have to match their offerings in a shared parental leave package? Is my view far fetched or coming soon? Only time will tell the answers to these questions but I can’t help but feel that the government have not thought out the practicalities organisations really face from shared parental leave.

Equal parental leave pay

Last year the BBC (2014) highlighted Nick Clegg’s plans for all civil service employees to be offered equal parental leave pay – allowing Dads (or partners) taking SPL to receive the same full pay as Mums taking maternity leave. Clegg hoped this would pave the way other other organisations to follow suit in both the public and private sectors. It seems a simple remedy to prevent the above hypothetical situation from occurring, it seems fair and just for a society that demands equal rights. I feel for the SME employers though, it seems like another initiative that has been thrown out there with little regard for how small businesses will deal with implementing the changes and the associated costs.

**UPDATE 2017**

Ali v Capita Customer Management Ltd

A recent judgement has ruled in favour of Mr Ali who claimed direct sex discrimination as he was not able to take additional paternity leave at full pay. Instead, Mr Ali was offered Shared Parental Leave at statutory pay, whereas his female colleagues were entitled to 14 weeks’ full pay under the company maternity pay policy.

It is believed Capita have lodged an appeal against the tribunal decision,

 

Reference
BBC (2014) Equal parental leave pay for Civil Service staff [Online] Available at: http://www.bbc.co.uk/news/uk-politics-29682649 (Accessed 26 February 2015).

Please note this article is not intended to constitute legal advice, but provoke thought into the problems businesses might face as a result in the incoming shared parental leave entitlement.

Sarah Dowzell, Assoc CIPD

About Sarah Dowzell, Assoc CIPD

Sarah first became an employer in the commercial cleaning industry at the age of 21. She holds a First Class Honours Degree in Business Studies and Associate CIPD membership. Sarah is an avid campaigner for government level policy change, championing better mental health provision in the workplace and raising issues that affect women and working parents.

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