During a call this week, a client said they’ve seen a case saying you have to pay more to fathers that are taking shared parental leave. Is this true?
A well-publicised case on pay for fathers taking shared parental leave has caused some concern among employers about the correct rate of pay for those taking leave.
Some companies offer different pay schemes depending on the type of family leave taken. Some businesses will offer enhanced maternity pay where mothers receive full pay, or pay above the statutory rate, for a set period of time. Some may also offer additional pay for paternity leave. The uncertainty with shared parental leave is caused by both female and male employees being able to take this leave.
Enhancing shared parental pay for mothers, but not fathers, will be classed as discrimination on the grounds of gender as male workers will be treated less favourably. This was confirmed in a previous employment tribunal decision where nearly £30,000 was awarded for indirect discrimination as Network Rail gave full pay to mothers on shared parental leave and only statutory shared parental pay to their partners.
It has been a long established thought that employers can enhance maternity pay but not shared parental pay due to the special recognition awarded to mothers taking maternity leave. To take shared parental leave, mothers give up this special protection to share their leave with their partner.
However, an employment tribunal has taken a different approach by finding it was sex discrimination to pay 14 weeks’ full pay for females taking maternity leave and only statutory pay for those taking shared parental leave. This decision is only at tribunal level and is based on the specific facts of the case, including that the father was advised to take full caring responsibility for the child. Other employment tribunals are not bound to follow the decision and the employer has already lodged an appeal.
For now, your clients should review their family pay policies to ensure these do not discriminate against employees based on their gender. Any decisions to enhance pay should be supported by a business reason and this reason should be documented.
