Posted by Malcolm Gregory, Partner
How shared parental leave could help reduce the gender pay gap
Gender pay, equality and fairness in the workplace are all hot topics, and a recent Employment Appeal Tribunal (EAT) case – Capita Customer Management Ltd v Ali – sought to challenge the pay difference between maternity pay and shared parental pay (for shared parental leave).
What is shared parental leave (SPL)?
Broadly, the rules allow both parents to decide how to allocate up to 50 weeks of leave and 37 weeks of pay following the birth of their child. For instance, a mother could take the compulsory maternity leave period (two weeks from the birth) plus 3 months’ and then return to work, while her partner is able to use the ‘remainder’ of the leave as shared parental leave (SPL).
SPL can either be taken consecutively or concurrently, as long as the total time taken does not exceed what is jointly available to the couple. This means that new parents can take time off to care for their child at the same time, or one after the other.
What was the case about?
Ali (a male employee) had a daughter and took two weeks’ paid paternity leave. When he enquired about taking further leave to look after his daughter, he was informed that he was eligible for shared parental leave (SPL), but would only be paid statutory shared parental pay (ShPP).
He raised a grievance as he felt that he should receive the same entitlement to pay as a female employee taking maternity leave (which was at an enhanced rate), on the basis that SPL allows parents to choose who takes leave to care for their child following the mother’s two-week compulsory maternity leave period.
The EAT found that Ali was not discriminated on the grounds of sex and noted that childcare, although clearly a part of maternity leave, was not its primary or expressed purpose. Conversely, the purpose of SPL is childcare. The EAT also disagreed with the comparator used by the Employment Tribunal and said the correct comparator would have been a woman on SPL, who would have been given ShPP on the same terms as Ali received.
The EAT ruled that the more favourable treatment given to women on maternity leave was rendered lawful by the exception in S.13 (6) (b) of the Equality Act 2010.
Why does this matter?
Culturally, it appears many men are unwilling to take SPL but the reduction in (typically but of course not always) the breadwinner’s salary often makes SPL unpopular with a family.
The issue of paternity leave and SPL is also very topical due to the Gender Pay Gap reporting recently introduced for large employers, which has shown that the average pay for men in the UK is around 18% higher than the average pay for women.
Whilst improving recruitment processes, supporting more female promotions and greater pay for women are all ways to reduce the gender pay gap, encouraging (or forcing!) fathers to take more SPL would allow mothers to return to work earlier, work more hours and earn more money, making it a really beneficial move towards reducing the gender pay gap.
Whilst the Employment Appeals Tribunal may have concluded that the treatment of Mr Ali on this occasion was not discriminatory, employers may wish to review their current contractual pay arrangements for all forms of parental leave when considering what steps can be taken to reduce the gender pay gap.
If you have any questions on the gender pay gap and equality and fairness in the workplace or would like advice any other employment law matter, please contact our specialist Employment & HR team on
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