Employers enhancing maternity pay may need to do the same for men

2015-06-08 Philip posted:

The new Shared Parental Leave (SPL) and pay rights for parents has been in force since 5th April 2015. One of the considerations for employers who offer mothers enhanced maternity pay is deciding whether to give SPL pay at the same enhanced level. Employers will have to weigh up the costs of doing so against the legal risks of not doing so.

While the government has encouraged employers to enhance shared parental pay, its view is that they are not legally obliged to do so. However, a recent Employment Tribunal case has cast some doubt on this. Although concerning Additional Paternity Leave (APL), Mr Shuter claimed his employer, Ford Motor Co were discriminating against him on grounds of sex. Mr Shuter lost his case: a man taking APL cannot compare himself to a woman on maternity leave who was pregnant, gave birth and cared for the child. He could only compare himself to someone else taking APL and as Ford paid everyone on APL the same whether they were male or female, it was not discriminatory.

However, the position may now not be so clear cut. As men can take SPL following the birth of their baby, the position of men on SPL and women on maternity leave is more similar now than has been the case previously. It paves the way for men taking SPL to compare themselves with a new mother receiving enhanced maternity pay and to claim discrimination where they do not receive correspondingly enhanced rates of pay. This could disadvantaged proportionately more men than women, because while women have the choice of whether to stay on maternity leave (with enhanced pay) or take SPL, men can only take SPL and not maternity leave.

Employers that already offer enhanced maternity pay need to consider whether they will enhance Shared Parental Pay for all employees. Those who decide not to would be well advised to monitor the take-up of SPL by men and women and consider whether it could be established that men are particularly disadvantaged by paying at a non-enhanced rate.

The dilemma for employers is that enhancing SPL pay could produce a greater uptake of SPL (currently estimated at only 2-8%) than might otherwise be the case.

If the lack of enhanced pay for SPL deters men from taking leave, then the government’s aim of levelling the work playing field will not have been met. It is surely only a matter of time before we see cases on this issue – albeit no employer will want to be the first to have their pay policies examined in public.

Telephone us on 01225 632240 to discuss how we can help you ensure you have the right ‘family friendly’ policies for your business and apply them fairly.

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