Shared parental pay: is your policy discriminatory?
Partner, Veale Wasbrough Vizards
In the widely reported case of Snell v Network Rail Infrastructure Limited, a Scottish employment tribunal found that Network Rail's policy on shared parental pay was discriminatory towards men on the basis that women were entitled to an enhanced level of pay and fathers were only entitled to statutory pay.
Shared parental leave effectively allows both parents to share leave after the birth or adoption of a child. An employer is required to pay statutory shared parental pay as a minimum but may offer enhanced pay to their employees as part of a benefits package. Statutory shared parental pay is paid at the rate of £139.58 a week or 90% of the employee's average weekly earnings, whichever is lower.
It was reported that Mr Snell and his wife both worked for Network Rail and planned to take shared parental leave once their child was born.
Mrs Snell proposed to take 27 weeks’ leave and Mr Snell proposed to take the 12 weeks following that. Mr Snell subsequently discovered that under Network Rail's policy, he would only be entitled to the minimum statutory pay whilst his wife was entitled to full pay.
Mr Snell raised a grievance claiming that he was being discriminated against for being a man. Network Rail dismissed the grievance and so Mr Snell brought a claim for sex discrimination.
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Employment Tribunal (ET)
The ET found that Network Rail's policy amounted to sex discrimination against men and Mr Snell was awarded almost £30,000. The policy stated that women on shared parental leave would be paid more than men on shared parental leave.
This case serves as a warning to employers to check that their policies on shared parental pay do not discriminate against men. Employers should ensure that both men and women are entitled to equivalent levels of pay under any shared parental pay policy.
It should also be noted that pay for shared parental leave can be distinguished from pay for maternity leave. The law does not currently require employers to match maternity pay and shared parental pay, meaning that an employer could offer an enhanced maternity pay package whilst only offering statutory shared parental pay.
However this point has been the cause of much discussion and it is not clear whether a failure to match pay across various policies, where enhanced pay is offered in one and not the other, could amount to sex discrimination. Employers should consider the reasoning behind any differences in pay between maternity and shared parental leave policies to help with any justification defence in the event of claims of indirect discrimination. Cost alone is unlikely to be a sufficient justification.
Notwithstanding the above, for a belt and braces approach and to remove any potential for discrimination claims to arise, it may be advisable for employers to ensure fairness across the board and either offer enhanced pay within all of its policies or only offer statutory pay.