When the claimant and his wife discovered that they were to have their first child, the decision was made that the claimant would stay at home while his wife returned to work.  As a result, the claimant inquired about his entitlements under the Shared Parental Leave Policy.    Accordingly, he requested the monthly breakdown of pay if he were to take 37 weeks parental leave with his wife taking the two week compulsory maternity leave.   The claimant was informed that the policy entitled him to an amount equal to statutory maternity pay rather than any enhanced amount.

The claimant’s claim was based upon the argument that the shared parental leave policy was discriminatory on the basis of gender.  This was on the basis that he would only receive the statutory pay yet employees on statutory maternity leave or adoption leave would receive higher rates.  The maternity leave and adoption leave rates were the same in that they provided 6 weeks at 90%, 12 weeks at 50% plus SMP followed by 21 weeks at SMP.

At first instance the Employment Tribunal dismissed the claim with reference to the Court of Appeal decision in Capita Customer Management Ltd v Ali, where it was held that there were material differences between shared parental leave schemes and maternity leave schemes. This meant that his comparator was not appropriate for the discrimination claim.  Furthermore, when it came to adoption leave the Tribunal held that they were materially different considering the steps that have to be undertaken when it comes to adoption.  Accordingly, it was held that the only appropriate comparator would be a female taking shared parental leave, which would have led to the same treatment.

The EAT upheld the decision of the Tribunal, noting that there were clear material differences between shared parental leave on one side and maternity leave and adoption leave on the other.   This could be seen with maternity leave beginning before the child is born, for instance, or that adoption leave was more than just the facilitation of child care.  Taking that into account as well as the points made by the Tribunal at first instance, it was held that the appropriate comparator would have been a female seeking shared parental leave and that it would have led to the same outcome.  Therefore, the appeal was dismissed.

Practical Lessons 

This is an interesting case as to where shared parental leave sits in alongside maternity leave and adoption leave. On the face of it, there is a clear disadvantage in monetary terms for those who seek to take shared parental leave compared to the other forms of leave where employers have an enhanced scheme. Despite the disadvantage, it does not give rise to discrimination as outlined here as the comparator would be with a female seeking the same leave.  This means that employers who adopt this type of policy can be assured that there is no discriminatory element to it.
https://assets.publishing.service.gov.uk/media/606448fae90e074e4d4ceb51/Mr_B_Price_v_Powys_County_Council_UKEAT_0133_20_LA__V_.pdf