This month the Employment Appeal Tribunal ruled that it is not direct sex discrimination to offer shared parental leave statutory pay to males, while simultaneously offering enhanced maternity pay.
However, a claim of ‘indirect sex discrimination’ that was initially dismissed by the first employment tribunal, can be heard again. This keeps the question of indirect discrimination in these instances very much in the air.
Working Families, a charity that strives to help working parents/carers and employers find an appropriate balance between work and personally life, argue that this is preventing the necessary culture change in business around parents sharing childcare responsibilities.
Chief Executive Sarah Jackson commented that “employers should carefully consider the aims and benefits of enhancing one sort of pay and not the other. We’d encourage employers that can afford to do so to go beyond the minimum pay for shared parental leave, making it a more realistic option for more families.”
There is an argument to suggest that if enhanced shared parental leave was an option, the ability for fathers to be able to bond with their child in the first year could change attitudes to the working family dynamic. This could potentially even reduce the gender pay gap as women would be less inclined to take the larger proportion of time off work, pausing their careers.
The case, which involved the Leicestershire Police, a male worker claimed that he had been discriminated because of his sex as he was only entitled to statutory parental pay, when the employer paid enhanced maternity to female employees.
Mrs Judge Slade ruled that the initial tribunal had erred in applying a direct discrimination comparator to an indirect discrimination claim, explaining why the latter will be heard by an employment tribunal at a later date.
She added that “It is the resultant disadvantage which must be considered in deciding a claim of indirect discrimination. The disadvantage in this case was that the only option for men wishing to take leave after the birth of their child was to take SPL at the statutory rate. However, women wishing to take such leave had the possibility of taking maternity leave at full pay.”
It’s not clear what this will mean for future cases but there is definitely a likelihood in an increase of indirect discrimination cases by male workers. The best course of action in order to protect yourself as an employer would be to ensure that you have a fair and balanced approach in enhancing family related staff benefits.