In Snell v Network Rail, a father has been awarded almost £30,000 in a sex discrimination case after his employer refused to pay him the same as his wife while on shared parental leave. This is the first case of its kind and unusually involves a couple who both worked for the same employer.
Mr Snell and his wife opted to share their leave. His application indicated that his wife would take 27 weeks’ leave and he would take 12 weeks after that. While Mrs Snell would receive full pay for her six months’ leave, Mr Snell was told he was only entitled to statutory parental pay of £139.58 for this period.
After a very lengthy grievance process, Mr Snell lodged an indirect sex discrimination claim with an employment tribunal. The tribunal heard that Network Rail has since introduced a new family friendly policy, in which both mothers and their partners are paid statutory – rather than enhanced – shared parental pay. Network Rail had initially contested indirect discrimination and argued that any disadvantage could be justified, based on the legitimate aim of recruiting and retaining women in a male-dominated workforce, but conceded this point so the tribunal only had to deal with remedy (compensation).
Network Rail had created a Family Friendly Policy in which it had combined rules about maternity, adoption, surrogacy and shared parental leave.
Peter Stanway, our BackupHR™ legal expert comments:
Although this first-instance tribunal decision is not binding, employers should review their policy in case they are following the same approach as this employer. This decision is only going to affect employers who have enhanced maternity schemes in place. Anyone considering removing a benefit like Network Rail ought to take professional advice before doing so.
The issue of whether or not it is discriminatory for employers to enhance maternity pay, but not shared parental pay, remains untested in the courts and tribunals. What is clear is that an employer cannot offer enhanced contractual shared parental pay to mothers only. If an employer chooses to offer enhanced contractual shared parental pay, it must offer it to both mothers/primary adopters, and fathers/ mothers’ or primary adopters’ partners. A direct discrimination claim is unlikely to succeed, as the father on SPL should be compared with the mother on SPL and not the mother on maternity leave. An indirect discrimination claim would depend on the circumstances, including the make-up of the workforce and the number and breakdown of employees taking SPL.
Actions
- If you offer enhanced contractual maternity pay then you should review whether this is a wise policy. Government guidance is that there is no legal requirement for employers to offer corresponding enhancements to shared parental pay, but this may be challenged.
- If changes to policies are required, appropriate consultation procedures must be followed, being careful not to avoid a breach of contract where agreement with employees to revisions is necessary.
- While the take up of SPL is very low (only 1.5% of eligible parents according to research earlier this year), employers must be prepared to handle requests properly or face the consequences.
- Deal with grievance issues sensitively and promptly, rather than wait for several months, as happened in this case and resulted in additional compensation.
- Ensure you have well drafted policies which reflect the law and avoid shortcuts, which create ambiguity.
Network Rail’s response to the discrimination claim was to limit pay for women to statutory only, rather than enhancing the pay for men. This could be the least risky step to take, but is a shame if employers wish to promote a positive family-friendly environment.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
