The law on whether an employer is entitled to pay women on maternity leave and men on shared parental leave differing rates of pay remains uncertain following a number of contrasting decisions.
In the 2016 case of Snell v Network Rail the employment tribunal awarded a male employee almost £30,000 because he was only paid the statutory rate of pay during his period of shared parental leave, rather than the enhanced rate offered to women on maternity leave. However, the award was made after Network Rail’s lawyers had advised the company that their policy of paying an enhanced rate to female employees was discriminatory and therefore the Employment Tribunal never actually had to rule on this point.
In the 2017 case of Ali v Capita, a male employee won a direct discrimination claim against his employer on the basis that they offered 14 weeks enhanced maternity pay to female employees, but would only pay shared parental leave at the statutory rate. However, in the 2017 case of Hextall v The Chief Constable of Leicester Police, a similar claim failed on the basis that a father on shared parental leave could not compare himself to a woman on maternity leave.
In view of this uncertainty, you need to review your policies on payments for employees on maternity and shared parental leave and decide, in consultation with your solicitor, the approach you want to take. Remember that where existing policy provisions form part of employees’ contractual entitlements, consultation with employees on any proposed changes is required.
For further advice on any of the issues raised in this article, or for employment law advice more generally, please call us on 0203 740 2360 or email [email protected].