Is my work’s maternity bonus scheme discriminatory against men?

The company I work for operates a return to work maternity bonus scheme (return to work for six months /receive 12 weeks salary). This is great, however, there is no equivalent for men taking additional paternity leave. I have just had six months extended paternity off work. Could you advise where I stand with attempting to get equivalent bonus treatment? I believe a test case has recently been attempted involving a car company – the company won as they were able to show they already had a positive discrimination policy in place to attract women to the male-dominated sector. My company is not male dominated. In fact I work in a team of women. Could the new rules on shared parental leave and very low take-up of extra leave by new fathers be important? Could it be discrimination?

When Additional Paternity Leave (APL) was introduced in 2011, many employers had to consider whether they should vary their maternity schemes to ensure that men, on APL, received the same benefits as women on maternity leave. However, the position taken by the Government at the time was that employers were not required to offer enhanced paternity pay schemes as a failure to do so would not amount to direct sex discrimination. Their reasoning was that employees of either sex could take APL. Therefore, as long as a man taking APL was in the same position as a woman taking APL (e.g. same sex partner of the birth mother), there was no less favourable treatment for the purposes of a direct sex discrimination claim. The Government’s approach was adopted by an employment tribunal in the case you refer to in your question – Shuter v Ford Motor Co Ltd.

It is important to remember that Shuter is only a decision at first instance and is not binding on other employment tribunals or the Employment Appeal Tribunal. However, the outcome of Shuter does give some indication as to how a direct sex discrimination claim against your employer might be decided. Assuming the same logic applies, the correct comparator would be a woman on APL who would also presumably be treated no differently to a male and the claim would not be successful.

An alternative argument would be to claim indirect sex discrimination. Following the rationale in Shuter, your employer’s APL policy is likely to be considered to be ‘gender neutral’ as both women and man can take APL. However, in Shuter the employer accepted that the policy would have a disproportionate impact on men (given that the business predominantly employed men) and that the policy did adversely affect Mr Shuter in this case. However, the company was able to successfully justify the policy by showing that they had a positive discrimination policy in place to attract women to the male-dominated sector. The tribunal therefore rejected Mr Shuter’s claims.

Your case is slightly different because you may not be able to demonstrate a disproportionate impact on men, given that you say that your workforce is predominantly female. If you were, however, able to demonstrate this, you would then need to show that you yourself were disadvantaged. The onus would then be on your employer to ‘justify’ the discriminatory policy.

In light of the above I would suggest you raise your issues informally with your employer. If you are not satisfied with the response you receive then I would recommend you raise a formal grievance. If this does not resolve the matter then I would recommend you take further legal advice about your situation. Please note that any discrimination claim has to be presented to an employment tribunal within three months of the discriminatory act. You would also need to go through the Acas pre-conciliation procedures before a claim would be accepted by an employment tribunal.

*Helen Frankland assisted in this answer.

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