Shared Parental Leave: Equality or Direct Sex Discrimination?

By Catherine Kerr

Welcoming a new baby into the house, while a joyous and happy occasion, is not without its difficulties. As well as dealing with sleepless nights, parents also need to decide who stays at home with the baby and who goes to work. Often, it’s mum that stays home.

Surely, sharing the load would make things easier for both parties? However, the concept of shared parental leave is not quite as clear cut as it could be.

Shared parental leave (SPL) is a scheme introduced in 2014, which gives employees with new born babies a flexible way to take leave in the first year after the birth of their child. This scheme is available for all employees, subject to meeting specific eligibility criteria.

All sounds good right? Unfortunately not.

SPL has received its fair share of criticism. Some critics state that partners – often the fathers – do not want to take leave, whilst others note self-employed people are not eligible. Such criticism is reflected in recent figures showing that as little as two per cent of new parents are opting to take SPL. It seems the government’s hopes of making parental leave more flexible and accessible for couples hasn’t quite become reality.

Interestingly, recent judgments have considered whether the disparity between the levels of pay offered to women under an employer’s enhanced maternity scheme and the level of pay offered to partners under an SPL scheme could be potentially discriminatory.

On 24 May 2019, in the Royal Courts of Justice, the Court of Appeal heard two appeal cases together, Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall. The Court held in both cases that an employer’s alleged failure to pay men enhanced shared parental pay, in circumstances where it paid enhanced maternity pay to female employees, was not direct sex discrimination.

The Court decided “The predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner”. In other words, the mother was not an appropriate comparator under the Equality Act 2010 for a partner seeking enhanced SPL.

Fundamentally, this distinction has existed for many years. EU law has provided special legal protection to women in the event of pregnancy and childbirth for decades and, quite rightly, this protection should not be seen as infringing the principle of equal treatment under the Equality Act 2010.

In light of the above issues, a recent Women & Equalities Committee report recommended replacing SPL with a new, standalone system of ‘dedicated daddy leave’. Granted, the scheme name needs some work, but the premise is interesting. The Committee’s research suggests that many fathers or partners object to taking leave away from the mother under the current SPL scheme. This is the case in Sweden, where take-up rates soared after a non-transferable one-month paid leave quota for fathers or partners was introduced in 1995.

It is evident that the lack of interest in SPL from parents reveals problems with the current model. Hopefully, cases like Ali and Hextall will help encourage the inevitable changes needed to the SPL scheme.

If you would like further information about Shared Parental Leave or would like some advice on eligibility, please get in touch with Catherine Kerr on catherine.kerr@primaslaw.co.uk.

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