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Maternity leave and shared parental leave – NOT the same thing

Shared Parental Leave (“SPL”) was introduced in April 2015, providing a flexible arrangement for parents to manage their child care commitments more equally and creatively. A relatively straight forward concept – mother/primary adopter is entitled to share his/her 52 weeks statutory maternity leave together with 39 weeks statutory maternity pay with his/her partner, provided that they both meet certain eligibility requirements.

Sounds good, right? So why is it that 3 years down the line, only around 1% of eligible employees are exercising this right?

One issue seems to be that whilst a number of employers offer enhanced maternity pay, they only offer the statutory minimum in respect of Shared Parental Pay (“ShPP”). Whether or not this is discriminatory has been the subject of judicial debate. Unsurprisingly, earlier this year in the case of Hextall, the tribunal concluded that it was not discriminatory in accordance with previous case law. More interestingly, the appeal judgement in the case of Ali (which was linked to the appeal of the Hextall case) was handed down last week. Ali had previously been decided in favour of the claimant father, who argued that where leave is taken for the purposes of caring for a child, benefits should be offered to men and women on an equal basis.

In Ali (Ali v Capita Customer Management Ltd), the first instance tribunal held that refusing to match ShPP for a father to the enhanced maternity pay available for mothers amounted to direct sex discrimination. Whilst Capita argued that Mr Ali could not compare himself to a woman on maternity leave because he had not given birth, the Tribunal concluded that this was not correct. Mr Ali’s position was that a woman is only restricted from working on health and safety grounds during the first two weeks of maternity leave. Mr Ali accepted that these 2 weeks are specifically protected for the purposes of enabling a mother to recover from childbirth, a condition unique to women. Nevertheless, after those two weeks, Mr Ali argued that a female employee takes maternity leave to care for her baby, and as such is an appropriate comparator for the purposes of determining pay. The first instance tribunal were persuaded by this argument and upheld Mr Ali’s direct sex discrimination claim.

On appeal, Counsel for Capita highlighted that European legislation on the issue, from which our domestic legislation is derived, emphasises the fact that maternity leave is granted for the specific purpose of recovery from childbirth. In particular, Counsel highlighted that a woman who has given birth/carried a baby for 24 weeks is still entitled to take maternity leave even if her baby dies. This, it was said, demonstrates that the legislation's primary purpose is to protect the health and wellbeing of a mother, rather than to facilitate childcare. Counsel also pointed out (in making the same point) that a woman can choose to start her maternity leave up to 11 weeks before giving birth, when there is no baby to care for.

It is of note that this appeal had an intervenor (Working Families) which had the specific agenda of ensuring that the consequence of this case was not a diminution of existing rights for mothers or parents. To clarify, one of the fears was that if Ali was successful and it was held that it was unlawful to enhance maternity pay but not ShPP, employers would stop offering enhanced maternity pay rather than bearing the costs associated with enhancing ShPP.

Of course, whilst recent case law has confirmed that employers are not obliged to provide enhanced ShPP, employers are free to enhance their family friendly benefits, including ShPP provisions, if they wish. Some of the trailblazers in this regard include Deloitte, whose ShPP (16 weeks' full pay, followed by 10 weeks' half pay) is the same as their enhanced maternity and adoption pay. Similarly, Virgin Management Ltd offer up to 100% pay for 52 weeks for parents of either sex, including adopters. 

If you are thinking about enhancing your company family friendly benefits, or have any questions about navigating family friendly rights, please get in touch with Claire or Rebecca in our employment team, who will be happy to help. We are also able to offer bespoke training on this area, delivered in house, to your HR and senior management teams. For more information, please call 02920 48 2288.

Please note – in April this year (2018), the statutory rate of pay during maternity, adoption and shared parental leave increased to £145.18.

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