Sex Discrimination: No discrimination where an employer does not pay enhanced shared parental pay but does pay enhanced adoption pay

Published 29 April 2021

The EAT has upheld an employment 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

THE FACTS

Mr Price worked for Powys County Council. He wanted to take shared parental leave (SPL) so that he could stay at home to care for his baby while his wife returned to work. However, when he was told that he would only be paid statutory shared parental pay (ShPP), he decided not to proceed with his application for SPL.  

In contrast to the Council’s decision that it would not enhanced ShPP, its employees who take statutory maternity leave and statutory adoption leave are entitled to enhanced maternity or adoption pay.

Mr Price claimed in the tribunal that it was direct sex discrimination for the Council to pay employees on statutory maternity leave and statutory adoption leave more than employees on SPL. He identified two possible comparators:

1. A female employee on statutory maternity pay; and
2. A female employee receiving adoption pay.

The tribunal held that Mr Price’s position was materially different to that of a woman on statutory maternity leave. This follows existing case law (please see our alert here. The circumstances of a woman on statutory maternity leave are materially different from those of a man as the purpose of statutory maternity leave is the health and wellbeing of the pregnant and birth mother. A woman on statutory maternity leave is not therefore an appropriate comparator.

There had not, before this case, been any binding decisions in relation to comparing a woman on adoption leave with a man taking SPL. The tribunal held that, while there were more similarities between Mr Price and a female employee on statutory adoption leave, there were still material differences between the two situations.  The correct comparator would be a female employee on SPL. As this comparator would be paid the same as Mr Price, they would not have suffered any discrimination. 

Mr Price appealed to the EAT.

Mr Price argued that, in contrast with the position on statutory maternity leave, the underlying purpose of both SPL and statutory adoption leave is the facilitation of childcare and that a comparison between a woman on adoption leave and a man on SPL is therefore possible. The EAT disagreed, finding that the purpose of statutory adoption leave goes well beyond childcare. The purpose of adoption leave includes the child’s welfare (for example, forming a parental bond and maintaining a safe environment for the child) and the health and safety concerns for the child and adoptive parents.

Mr Price also argued that the tribunal had been wrong in the material differences that it had considered existed between statutory adoption leave and SPL. The EAT upheld one of his arguments, but still found that there are relevant and significant differences between the adoption and the shared parental leave regimes, which are: 

1. Statutory adoption leave can begin before placement of the child. SPL cannot begin before the end of compulsory maternity leave.
2. Statutory adoption leave should begin, at the latest, on the date of placement. This underlines the need for an adopter to prepare a safe environment and develop a parental bond. In contrast, SPL can begin any time during the first year of a child’s birth or adoption, which is consistent with the purpose of the facilitation of childcare.
3. In contrast with statutory adoption leave, SPL requires the partner’s consent to give up statutory adoption leave.
4. Unlike statutory adoption leave, SPL can be taken in discontinuous periods.

The EAT therefore agreed with the tribunal that a woman on statutory adoption leave was not an appropriate comparator for Mr Price. His appeal therefore failed.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is useful confirmation that employers are not at risk of discrimination claims where they provide enhanced adoption pay but do not enhance their shared parental pay.

Given the low take up of shared parental leave and the societal inequality it was intended to address, there have been calls recently by the TUC, Maternity Action and the Fawcett Society for reform of the shared parental leave scheme. The government began work on an evaluation of parental leave in 2018, and is due to publish its findings (delayed by the pandemic) in due course.

Price v Powys County Council UKEAT/0133/20/LA (V)