Dad wins discrimination case relating to Shared Parental Leave

Network Rail has been ordered to pay nearly £30,000 to a father who claimed indirect discrimination when he was not given enhanced pay on Shared Parental Leave.

Both the father and mother worked for Network Rail, but while the mother received full pay for six months of her leave, the father, David Snell, only got the statutory rate.

On finding out about his pay, Snell raised a grievance internally, which was rejected by Network Rail on the grounds that legally they did not have to pay any more than the statutory rate and that it would only amount to discrimination if the female partner of a woman in a same sex relationship was given enhanced pay and male partners were not.

Snell then lodged a case at the employment tribunal. Network Rail conceded that their SPL policy was indirectly discriminatory and the judge awarded Snell £28,321.03.

Network Rail has since introduced a new policy reducing women’s entitlement for Shared Parental Leave to the statutory rate rather than enhancing the rate for fathers taking SPL.

A spokesperson for Network Rail said: “Network Rail aspires to be an inclusive and diverse organisation that works hard to ensure we embrace equality at every level. We accept the judgement of the Employment Tribunal which found flaws in a well-intentioned and generous maternity and shared parental leave policy. This policy has now been adjusted to recognise the points made by the tribunal. We’d like to apologise to our employee for the distress caused by this case.”

Speaking about the change to their shared parental pay policy, Network Rail added: “The government policy is that we provide shared parental leave at statutory pay for mothers and fathers. Our revised policy is in line with the government’s position on this issue and we continue to offer enhanced maternity pay which is substantially more than the statutory payment. As a publicly funded organisation, when shared parental leave was introduced and following a review of the costs, we decided that we could not afford to enhance the payment for fathers.”

The issue of whether to enhance SPL and whether not doing so if maternity leave was enhanced would amount to discrimination was one of the key debates in the lead-up to its implementation.

Commenting on the case, Richard Mullett of The Legal Partners said: “Employers offering enhanced maternity pay above the statutory minimum to women only could make employers vulnerable to a sex discrimination claim.”

Ben Black, Director of My Family Care, commented on the ruling:  “All the best advice before shared parental leave was introduced was that employers would still be able to run separate schemes for mothers, including the guidelines produced by the Department for Business Innovation and Skills.  Has that been proved wrong by this case?  Possibly but not definitely…The most enlightened solution would be for enhanced pay to be available to either parent, male or female. Perhaps that would even have been the case in this instance, if the father had applied to take his period of leave before the mother had used up Network Rail’s reasonably generous allowance of 26 weeks’ full pay.

“The case is complicated by both parents working for the same employer and arguably the employer should be able to confine it to one block of enhanced pay per couple and let the parents decide the ‘who’ and ‘how’ within that, as long as it’s all explained clearly and fairly. Let’s hope this case provokes positive debate: a good initial outcome would be for the regulations to allow for statutory pay for SPL to be enhanced in the first 6 weeks to the same level as for maternity leave so that men or women accessing SPL would start off on the same footing as Maternity or Adoption Leave.”

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