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I’m currently taking shared parental leave from my job. My employer and I didn’t realise that I could only claim two weeks’ paternity pay and then the statutory amount from then on in. They paid me wrongly for two months and I now owe them this money back when I return to work. Nobody realised until afterwards that I wouldn’t receive the same as a female counterpart in my workplace – a full month’s pay, plus two weeks at 90%, then the next 10 weeks at 50%, plus maternity allowance if applicable. Is there anything I can do about this? Why does a man taking the main role as care giver to their child get financially penalised for it? This really isn’t equality at all. Do I have any claim to sexual discrimination or equal rights? Why can’t I claim and receive the same as my female counterparts?
You have identified a number of issues and I have subsequently looked to answer each point in turn:
I note that your employer got your pay wrong in the first two months you were off of work following the birth of your son. Generally speaking, an employer can recover an overpayment from any contractual payments due to the employee as an overpayment of wages, as that deduction is expressly excluded from protection under the unlawful deduction of wages regime provided by the Employment Rights Act 1996 (see section 14(1)). Section 27(1) of the Employment Rights Act 1996 sets out a wide definition of “wages”. This includes any sums payable to the worker in connection with their employment, including statutory maternity pay and shared parental pay. This would however depend on the terms of your contract or any other relevant agreement on this issue.
I further note that your employer has stated that they wish you to repay the money when you return to work. I would therefore suggest that you speak with them informally to see if you can come to an arrangement to repay the monies in installments. If you feel that they have failed to follow their policy regarding shared parental leave payments then I would recommend that you consider raising a formal grievance about your situation.
You note that a female in your workplace can claim ‘a full month’s pay, plus two weeks at 90%, then the next 10 weeks at 50%, plus maternity allowance if applicable’. Here I assume that you are talking about your employer’s maternity leave policy rather than their shared parental leave policy. The question of whether or not it is discriminatory for employers to enhance maternity pay but not shared parental pay remains largely untested in the courts and tribunals. Employers are able to decide whether or not to enhance contractual pay to employees on shared parental leave, when they already pay enhanced maternity pay. However, there is no statutory provision requiring them to do so.
As your employer presumably pays enhanced pay to employees on maternity leave, but not to employees on shared parental leave, there is a risk of them facing an indirect sex discrimination claim from a male employees who takes shared parental leave. However, your employer may be able to defend any such indirect sex discrimination claim on the grounds that the male employee on shared parental leave is treated no less favourably than the same-sex partner of a woman who had just given birth would be treated on shared parental leave. Unfortunately, there have not yet been any appeal decisions that set a precedent on this point.
If the policy you mention in your question refers to only women on shared parental leave then the situation is different. For example, in the case of Snell v Network Rail, a father was awarded almost £30,000 in an indirect sex discrimination case after his employer refused to pay him the same as his wife (who also worked for the same company) while each were on shared parental leave.
To fully advise on your situation then your employer’s policies and practices on maternity leave and shared parental leave would need to be reviewed in detail. If you feel your employer’s policy on shared parental leave is discriminatory against you then I would advise that you try and resolve the matter informally in the first instance. If this does not resolve the problem then I would suggest that you raise a formal grievance about the way they have handled your situation. If this does not conclude matters to your satisfaction then I would recommend you to take further legal advice regarding your specific situation. Please be mindful that any discrimination claim made to an employment tribunal must be submitted within three months. You must also undertake the Acas Early-Conciliation procedure before any claim can be submitted.
*Helen Frankland assisted in answering this question.