Since the introduction of shared parental leave, there has been considerable debate about whether employers are required to match any enhanced maternity pay package with enhanced shared parental pay. In particular, the concern has been that failing to do so could be discriminatory. Most businesses have taken the view that the correct comparator for a man taking shared parental leave is a woman taking shared parental leave, so provided they are both paid the same when it comes to shared parental pay, there is no discrimination.
However in a recent decision, an employment tribunal has taken a different view. In Ali v Capita Customer Management Ltd the tribunal decided that failure to pay enhanced shared parental pay to a male employee when a woman taking maternity leave would receive enhanced maternity pay amounted to sex discrimination because the purpose of both types of leave is to care for the new born child.
This decision is not binding and as such does not set a precedent that future tribunals must follow. However, it is persuasive and gives an indication of how tribunals may consider such claims going forward.
Our advice to employers is to review your policies and consider whether it would be appropriate to pay enhanced shared parental leave in line with maternity pay – or at least prepare for the possibility of being required to do this in future. This decision is being appealed to the Employment Appeal Tribunal and we hope that an appeal will provide clarity one way or the other.