Failure to Pay Enhanced Pay to Man on Additional Paternity Leave Not Discrimination
An employer was justified in paying only statutory paternity pay to a man on additional paternity leave, even though it paid full pay to women on maternity leave.
In Shuter v Ford Motor Co, Ford’s maternity policy provided women on maternity leave with full pay for up to 52 weeks. Its additional paternity leave policy provided for payment of statutory paternity pay only. S took additional paternity leave and was paid statutory paternity pay, resulting in him being paid around £18,000 less than a woman would have been paid on maternity leave in respect of the same period. He claimed direct and indirect sex discrimination.
The employment tribunal rejected his claims.
S sought to compare himself with a female employee on maternity leave who would have been paid full pay throughout. The employment tribunal ruled that this was not a valid comparison. There were substantial differences between his circumstances and those of a woman on maternity leave – the woman has given birth, cared for the child since birth and possibly breastfed it. The correct comparison was with a woman on additional paternity leave (i.e. a female spouse or civil partner who can equally take additional paternity leave). Since they would not be paid full pay either, there was no less favourable treatment and therefore no discrimination.
Ford accepted that its policy of paying full pay to women on maternity leave beyond 20 weeks after the birth was indirectly discriminatory but argued that it was justified. Its reason for introducing full pay for women on maternity leave was to recruit and retain women in a predominantly male workforce. The tribunal accepted that this was a legitimate reason and proportionate in the circumstances, noting that the overall number of women in the workforce had increased, including in professional and senior management grades. In addition, a substantial majority of women returned to work after maternity leave and remained for more than a year.
With shared parental leave due to be introduced from April 2015, employers who currently offer enhanced maternity pay will be considering whether they are obliged to pay enhanced pay during shared parental leave. Although shared parental leave and additional paternity leave are not identical, the employment tribunal’s decision in this case provides some guidance. However, it is important to remember that employment tribunal decisions are not binding and so another employment tribunal could come to a different decision. In addition, the tribunal’s decision on indirect discrimination turned on the facts of the case – the policy was designed to tackle significant under-representation of women in Ford’s workforce.
In the case of shared parental leave, it seems likely that the correct comparison for the purposes of a direct sex discrimination claim is between a man and a woman on shared parental leave. If they are paid the same, then there will be no direct discrimination.
As far as indirect sex discrimination is concerned, the success or otherwise of a claim may come down to justification arguments. Employers contemplating not paying enhanced pay to those on shared parental leave should therefore be considering their justification for not doing so, remembering of course that cost arguments are not sufficient on their own.