Q. We are aware of all the discussion surrounding pay for men on paternity and shared parental leave. We want to ensure that we are not discriminating against any of our staff. We pay women on maternity leave 20 weeks full pay, and men on paternity leave 2 weeks full pay. Any employee on shared parental leave currently receives statutory pay only. Is our practice unlawful?
A. Your current enhanced pay provisions are unlikely to be unlawful, however given the recent discussions around enhanced pay and family leave, it is likely to draw criticism and is not in line with best practice.
The headlines in the press have highlighted disparities between the law and social views and norms in relation to parents taking time out of work to look after a new child.
The legal requirements with regard to statutory pay are as follows (subject to the various qualifying requirements):
- Maternity leave – 6 weeks’ at 90% of average pay for the first 6 weeks, followed by the statutory rate (currently £148.68) or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks.
- Paternity leave – 2 weeks’ at the statutory rate or 90% of your average weekly earnings (whichever is lower).
- Shared parental leave – the statutory rate or 90% of your average weekly earnings (whichever is lower) for up to 37 weeks.
This is the minimum companies must offer in order to be compliant with legal obligations. The recent discussion has highlighted on men taking leave and the impact of enhanced pay provisions on offer by employers.
Many companies have offered enhanced maternity pay for many years (although it is also prudent to say that many companies still only offer statutory maternity pay). With the introduction of shared parental leave, the question has been asked as to whether organisations offering enhanced maternity pay should also offer enhanced shared parental pay leave, and whether not doing so would amount to sex discrimination.
Recent case law has reached the surprising conclusion that it would NOT be discriminatory to offer enhanced maternity pay but not shared parental leave pay. One of the primary reasons for this decision is that the purpose behind the two types of leave is different; the purpose behind maternity leave is to ensure the health and safety of the woman ‘during pregnancy and thereafter until her physiological and mental functions have returned to normal after childbirth’ and ‘to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth’, and the purpose of shared parental leave is to care for the child.
Further case law has even stated that any disadvantage suffered by a male under the statutory scheme could be justified due to the purpose behind the different types of leave.
It therefore appears that the law surrounding family rights paid leave has fallen behind social evolution. Recent press commentary has focused around the lack of uptake for Shared Parental Leave and the reasons behind it. These reasons include suffering discrimination in the form of no promotion, discriminatory comments, and the lack of enhanced pay meaning men cannot afford to take shared parental leave. It is worth taking a moment to remember that women have unfortunately been suffering from these same problems for years.
However, it can no longer be assumed that the woman will be the primary care provider after the birth or adoption of a child. Unlawful discrimination is therefore now being faced by both men and women when it comes to wishing to take leave to look after a child during their first year and this sadly highlights the negative attitude many employers still have towards this type of leave.
If a company wants to truly offer freedom of choice as to who takes leave to look after their child, it should offer enhanced shared parental leave pay if it currently offers enhanced maternity pay.
When making the decision, it is worth noting that although the current Court of Appeal case law decisions have said that it is not discriminatory not to offer enhanced shared parental leave pay if they offer enhanced maternity leave pay, permission has been granted to appeal to the Supreme Court, and so this decision may still be overturned. Good practice remains that enhanced pay provisions should be applied equally to all, regardless of the type of leave taken.
In addition, on 19 July 2019 Theresa May announced a consultation into parental leave entitlements. The consultation is seeking views on whether statutory paternity leave for fathers and same sex partners should be changed, and for suggestions on ways in which the shared parental leave policy could be improved.
It also sets out how the government is looking to introduce a new Neonatal Leave and Pay entitlement – entitling parents to one week of leave and pay for every week that their baby is in hospital. It therefore appears that the current leave regime will change in the next couple of years in order to provide further equality and rights to all parents.
Good practice therefore remains that enhanced pay provisions should be applied equally to all, regardless of the type of leave taken. This may, in the future, become law.
If you would like advice on employment law contact Tessa Robinson on 01634 828277 or any member of our Employment team.