Shared parental leave pay rules are off track says Lupton Fawcett employment lawyer

Alexandria Evans (pictured below) is a senior associate in newly rebranded Lupton Fawcett’s employment law department.

Network Rail has recently been ordered to pay almost £30,000 to a male employee after he was refused equivalent pay to his wife when he sought to take shared parental leave.

In Snell v Network Rail Infrastructure Limited, both Mr Snell and his wife worked for Network Rail and decided that they would share parental leave between them following the birth of their first child. His wife would take 27 weeks’ leave first and he would take 24 weeks leave after she had returned to work.

Network Rail’s family friendly policy stated that mothers on shared parental leave were entitled to full pay for 26 weeks followed by 13 weeks’ statutory pay. By contrast, fathers or mothers’ partners were entitled to 39 weeks’ statutory pay only.

Mr Snell raised a grievance against his employer and stated that the difference in treatment between mothers and fathers under the family friendly policy amounted to sex discrimination.

Network Rail’s response was that it had met its obligations by paying statutory parental pay. Unhappy with the outcome of his grievance, Mr Snell brought an indirect sex discrimination claim.

Interestingly, Network Rail conceded prior to the Tribunal hearing that Mr Snell had been indirectly discriminated against. The rail company accepted that the difference in treatment under the family friendly policy placed him at a particular disadvantage as a man when compared with a woman taking shared parental leave.

In some circumstances, indirect discrimination can be justified. However Network Rail failed to provide any evidence to show that the difference in shared parental pay encouraged the recruitment and retention of women in its male dominated workforce.Alexandra Evans

Mr Snell was awarded £28,321 which included £16,130 for loss of earnings. This figure was calculated based upon his normal weekly pay minus the statutory shared parental pay he would have received for 24 weeks.

Mr Snell’s intention however was to take shared parental leave once his wife had already taken 27 weeks’ leave and therefore received all of her full pay entitlement for 26 weeks.

Mr Snell was awarded full pay for his portion of leave despite the fact that a woman in these circumstances (i.e. from week 27 onwards) would have been paid statutory pay only. The Tribunal appears to have concluded that Network Rail intended that each parent should receive an independent period of full pay.

Whilst this was a victory for Mr Snell, it was not helpful to his female colleagues as Network Rail has now amended its family friendly policy so that all employees receive statutory shared parental pay only.

This case also does not address whether it is discriminatory for employers to offer enhanced maternity pay to mothers but offer statutory shared parental pay to all employees on shared parental leave.

This particular issue is likely to be litigated in the near future and the outcome could have far reaching consequences if the Government pushes ahead with its proposals to extend shared parental leave to Grandparents.

Employers should ensure that employees are treated alike when they seek to take shared parental leave.

Clearly worded family friendly policies which ensure that employees are not entitled to separate consecutive enhanced pay periods are also essential.

 

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