Case update (1): Discrimination & shared parental leave pay

What do we already know?

We updated you in our recent October 2016 Newsflash Discrimination & shared parental leave pay on the case of Mr Snell v Network Rail Infrastructure Limited in which a Tribunal award was made to a male employee of almost £30,000 for sex discrimination after his employer offered him only statutory pay during shared parental leave – while mothers were given full pay.

What’s new?

In our recent October 2016 Newsflash Discrimination & shared parental leave pay we promised you further detail on the case of Mr Snell v Network Rail Infrastructure Limited so here it is…

Summary:

Facts:  Both Mr and Mrs Snell, the employees worked for Network Rail. In anticipation of the birth of their first child they wanted to take advantage of shared parental leave.  Mrs Snell planned to take 27 weeks’ leave, after which Mr Snell planned to take 12 weeks. He later planned to change his request from 12 to 24 weeks.

Network Rail’s (the employer) Family Friendly Policy defined shared parental leave as “a period of up to 52 weeks of leave to be shared between mothers/primary adopter/surrogate parents and their partners”.

Under the employer’s policy in force at the time the request was made, mothers were entitled to contractual shared parental leave pay being:

• 26 weeks on full pay;
• followed by 13 weeks’ statutory pay; and
• followed by a further 13 weeks’ unpaid.

However, fathers/mother’s partners were only entitled to:

• 39 [sic] weeks’ statutory pay;
• followed by a further 13 weeks’ unpaid.

Mr Snell raised a grievance on the basis that the payment of different rates of shared parental leave pay to mothers and fathers was discriminatory.  His grievance was rejected on the basis that the correct comparator was a female secondary caregiver (and not a mother on shared parental leave), who would be paid at the same rate as Mr Snell, and that in any event the policy was justified by its aim of recruiting and retaining women in a male dominated workforce.

Mr Snell brought a Tribunal claim for direct and indirect unlawful sex discrimination.

The employer initially tried to justify its policy on the basis of objective justification, i.e. the aim of recruiting and retaining women in a male dominated workforce. However, by the time of the Tribunal hearing, the employer no longer contested the indirect sex discrimination claim on the understanding that the father was withdrawing the direct discrimination claim. The employer had also changed its policy to apply statutory pay to all employees who take shared parental pay.

The parties further agreed that the Tribunal should make a declaration that the father, Mr Snell, was indirectly discriminated against in relation to his sex by applying the shared parental leave policy. This meant that the Tribunal’s main focus was on compensation.  The Tribunal awarded:

• £6,000 injury to feelings;
• £16,130 future loss;
• £1,750 pension loss;
• £2,780 uplift for failure to follow the ACAS Code of Practice;
• £460 interest; and
• £1,200 Tribunal fees.

The £16,130 for future loss was calculated by deducting from Mr Snell’s normal weekly pay the statutory pay rate resulting in a weekly loss of £672 multiplied by 24 weeks (his intended shared parental leave period).

Implications: This case is of interest since the issue of Shared Parental Leave pay and the equalisation of benefits between mothers and fathers is a difficult area and this is a good reminder that if employers enhance shared parental pay for mothers but not fathers it is at serious risk of a successful discrimination claim.   The decision also provides useful guidance as to how Tribunals are likely to approach compensation in such claims.

However, as this case is only a Tribunal level decision it is not binding on other Tribunals and due to the concession by the employer that their policy was indirectly discriminatory, there was not a full debate of the issues or law in this case.

Also, unfortunately, the decision does not shed any light on whether it may be unlawful discrimination for an employer to enhance maternity pay but keep shared parental pay (for all parents) at the statutory rate. The Government’s view in its Technical Guidance (available here) is that this is not discriminatory and there is no statutory requirement to do so. This is on the basis a woman on shared parental leave would be treated in the same way as a man. However, overall, the legal position and in particular the effect of EU case law is not clear cut and there remains the potential for claims such as indirect discrimination or unlawful detriment to succeed.