Q&A: Do we need to change our Shared Parental Leave Policy?

Following Snell v Network Rail, should we change our policies to either increase shared parental leave payments or reduce occupational maternity pay?

In light of the recent Tribunal decision in Snell v Network Rail, in which a father successfully claimed discrimination in relation to shared parental leave payments, should we change our policies to either increase shared parental leave payments or reduce occupational maternity pay? 

The case of Snell v Network Railprovided an interesting a first glimpse into how the shared parental leave regime is likely to be tackled by Courts and Tribunals, so has attracted a lot of attention. While it is unlikely that you’ll need to make immediate changes in light of this judgment you may wish to take stock and consider your options. 

Shared Parental Leave and Statutory Shared Parental Pay – recap

Shared parental leave (SPL) is a legal entitlement for eligible parents of children born or adopted on or after 5 April 2015. SPL provides families with more choice over how they care for their child in the first year.

Employed parents who take SPL may also be eligible for statutory shared parental pay (ShPP). Under the shared parental leave regime, parents remain entitled to maternity/paternity/adoption leave. However, an eligible mother may elect to reduce her maternity/adoption leave early and convert this into SPL and share this with her partner. 

Following two weeks of compulsory maternity leave, parents can decide how to share the remaining 50 weeks maternity leave and 37 weeks ShPP. However, the mother’s maternity leave must be formally brought to an end before the shared scheme is available. 

Like maternity pay, the law only requires ShPP to be paid at the flat statutory rate, which employers may enhance if they wish. 

What was this case about?

The Claimant (a father) argued that his employer’s policy on shared parental leave and pay discriminated against men on the basis that mothers on shared parental leave were entitled to enhanced shared parental pay while fathers/partners on shared parental leave were entitled to statutory pay only.

Network Rail initially argued that this was not direct discrimination against men, as a female partner of a mother would also receive statutory pay only. However, by the time of the hearing, the employer had conceded that the policy was indirectly discriminatory against men as fathers/partners on shared parental leave were more likely to be male.

Do we need to change our policy?

The Government’s view is that there is no legal requirement for you to provide enhancements to shared parental leave pay. However, for the many employers who do offer enhancements, the outcome of Snell v Network Rail may have an impact.

It is however, worth noting the following:- 

  • The case of Snell v Network Railhas no impact if you offer statutory pay only. The impact will only be where enhanced schemes are offered.
     
  • This is a ‘first instance’ decision only, and therefore it is not binding on other Courts or Tribunals, nevertheless this may affect how Tribunals may view further claims.
     
  • The claim for indirect discrimination in this case was conceded by the employer prior to the hearing therefore the issues raised were not fully argued at the Tribunal. 

Options

  • The outcome of this case strongly suggests that your practice of pay for ShPP (enhanced or not) should apply equally to both men and women. If your policy pays mothers and fathers/partners differently when they are on shared parental leave, seek expert advice as you may wish to consider making changes or firm up how you will justify the difference.
     
  • In order to avoid a claim for discrimination, you could possibly enhance ShPP to match any enhanced maternity pay you offer. Of course however this would have significant cost implications.  Unfortunately this case did not tackle the trickier question of whether it is potentially or likely to be discriminatory to offer enhanced maternity pay while offering ShPP at statutory rates only, so it is difficult at this point to assess whether the risk justifies this extra cost. 
     
  • You might choose to pay statutory rates only for both maternity leave and SPL thereby removing enhanced maternity pay altogether. This was the option chosen by Network Rail in this case when their existing policy was challenged. You would however, need to consider whether this would be a breach of contract and this would likely have a negative impact on employees.
     

It would be drastic to change your policy on maternity/SPL in response to this case alone as it does not set a legal precedent. However, you may wish take the opportunity to review your policies to minimise the risk of any claim for discrimination. 

Lee Rogers (lee.rogers@weightmans.com) is an Associate in the Employment, Pensions and Immigration Team and is based in Liverpool. If you would like Weightmans to review your parental leave policies or have any other questions about this decision please contact Lee or speak to your usual Weightmans advisor.

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