Equal pay for men and women and the “gender pay gap” is a huge issue in the UK, because, despite the Equal Pay Act, statistics show that on average women are still being paid significantly less than their male counterparts.
Interestingly, however, when it comes to mothers and fathers in the workplace, the opposite issue is arising and we are frequently seeing employers paying mothers on maternity or shared parental leave at an enhanced rate, whilst paying fathers/partners on paternity or shared parental leave at the statutory level. On the face of it, this appears to be unfair and to go against the grain of equal pay. However, parents, of course, do not always fit into the traditional heterosexual model (where we can draw direct comparisons between a man and woman). Further, there is no statutory requirement to pay mothers and fathers equally.
This leaves open the question of whether treating mothers and fathers differently in terms of pay amounts to direct or indirect discrimination. This issue was addressed in the case of Shuter v Ford Motor Company Ltd, in which a male employee complained that his employer’s failure to pay enhanced paternity pay, whilst providing enhanced maternity pay, constituted direct and indirect sex discrimination. Unfortunately for Mr Shuter, the Tribunal rejected both his claims. It held that a woman on maternity leave was not comparable for the purposes of direct discrimination to a man on additional paternity leave, firstly because special treatment is afforded to women in connection with pregnancy and childbirth and secondly, because a woman in a same sex couple would be able to take additional paternity leave and so should be the correct comparator. In relation to the indirect discrimination claim, it was found that the employer’s discriminatory actions could be objectively justified on the basis that they needed to retain women in a predominantly male-dominated industry.
The Shuter case pre-dated the introduction of shared parental leave, but one would imagine that the same analysis would be applied where one parent is on maternity leave and the other is on shared parental leave, although perhaps not when both parents are on shared parental leave. This issue was the subject of the recent case of Snell v Network Rail Infrastructure Limited in which a father claimed that Network Rail’s policy on shared parental leave and pay directly and indirectly discriminated against men on the basis that mothers were entitled to enhanced shared parental pay while fathers were entitled only to the statutory level of pay.
Network rail used the arguments put forward in Shuter to defend both these claims and argued that the correct comparator in this case was a female partner in a same sex couple. Mr Snell later withdrew his direct discrimination claim and Network rail did not contest the indirect sex discrimination claim, meaning that, unfortunately, the judgment does not address and therefore provide us with an answer in relation to the substantive liability issues.
Whilst it would be useful to have more clarity from the tribunal in relation to these issues, it is nevertheless obvious, for the time being, that employers who have unequal policies for mothers and fathers are at serious risk of a discrimination claim.
Many high profile employers appear to be alive to this issue already as they have publicised their approach to shared parental pay and demonstrated that they are paying enhanced or matching benefits for both parents. It will be interesting to see if other employers now follow their lead and, in light of this, if the uptake of shared parental leave, which has initially been very low, increases.
*Harriet Vaines is Associate Solicitor at Winckworth Sherwood.