In the case of Price v Powys County Council, the Employment Appeal Tribunal have upheld the tribunal’s decision that there is no sex discrimination where an employer pays a man on shared parental leave less than a woman on adoption leave.
In the UK, Shared Parental Leave (SPL) provides flexibility for parents to take leave to care for their child. Eligible parents can take up to 50 weeks SPL in the first year after the birth of their child, or in the first year after their child’s placement for adoption, with up to 37 weeks of Shared Parental Pay (ShPP), depending on how much maternity entitlement the birth parent has taken (or adoption entitlement). The SPL entitlement can be taken in a number of ways; the birth parent/primary adopter can return to work early and their partner taking SPL, or the birth parent/primary adopter can curtail their maternity/adoption leave and both parents may choose to take SPL at the same time, or share it evenly at different times.
For parents adopting a child, one parent will be identified as the ‘adopter’, and be entitled to up to 52 weeks’ statutory adoption leave (made up of 26 weeks’ ordinary leave and 26 weeks’ additional leave) and up to 39 weeks’ statutory adoption pay.
In this case, the claimant, Mr Price, intended to stay at home to care for his child while his wife went back to work, and requested a breakdown of his entitlement to shared parental leave from his employer, Powys County Council. After some delay, the Council confirmed Mr Price would be entitled to statutory minimum pay only during his SPL.
Mr Price claimed direct sex discrimination on the basis that during maternity and adoption leave, employee pay is enhanced and therefore it is directly discriminatory for a male employee on shared parental leave to be paid less than two female comparators being (1) a woman on maternity leave receiving maternity pay and, (2) a woman on adoption leave receiving adoption pay.
Both comparators were rejected by the tribunal on the grounds that there were material differences between the comparators and Mr Price’s situation, the Court of Appeal having already found that there are material differences between a woman taking maternity leave and a man taking shared parental leave in Capita Customer Management Ltd v Ali and Hextall v Chief Constable of Leicestershire Police (2019) (Court holds that it’s not discriminatory to enhance pay during maternity leave, but to pay only statutory shared parental pay during shared parental leave. | Global Workplace Insider) However, Mr Price appealed the decision in relation to comparator (2), arguing that the underlying purpose of both statutory adoption leave and shared parental leave was the ‘facilitation of childcare’, and therefore the comparison was possible.
The EAT considered key material differences identified by the tribunal between Mr Price and comparator (2) being:
- The purpose of SPL is to facilitate childcare. Whereas the purpose of statutory adoption leave goes far beyond this, and includes a focus on forming a parental bond and preparing/maintaining a safe environment for the child.
- Statutory adoption leave is an immediate entitlement upon placement, whereas SPL can take place at any stage during a child’s first year after birth or adoption.
- Mr Price argued that, similarly to SPL, a female adopter and her partner must also agree who will be the “adopter” entitled to take the leave. However, the EAT disagreed because the nomination of an “adopter” takes place before the entitlement to take adoption leave arises – at that point, there is no leave entitlement to transfer to a partner. SPL can only be taken with the partner’s agreement to curtail the adoption leave.
- SPL is flexible as to when the leave is taken, which is consistent with the purpose of giving parents flexibility; whereas adoption leave (and maternity leave) must be taken in continuous periods.
The tribunal held that the correct comparator for Mr Price was in fact a female employee on SPL. Under the Council’s policy, the comparator would have received the same pay as Mr Price, and so there was no direct discrimination. The decision provides clarity and comfort for employers who have enhanced adoption pay policies in place that there is no requirement to also enhance shared parental leave pay.
However, the case highlights that the uptake of SPL by fathers remains relatively low due to the lack of enhanced pay as against other types of family leave. The claimant in this case chose not to take SPL. There have been calls by many organisations for a review of SPL and other family leave.