UK: Shared Parental Leave: The Curious Case Of Mr And Mrs Snell

Last Updated: 11 October 2016
Article by Connie Cliff

April 2015 saw the reshaping of family-friendly leave with the birth of Shared Parental Leave (SPL). 18 months on, as anticipated, the issue now coming before the tribunals is enhanced contractual pay. Can employers offer enhanced contractual pay to mothers/primary adopters but not to fathers/partners?

The Glasgow Employment Tribunal has recently awarded a new father almost £30,000 for sex discrimination as his employer offered enhanced contractual shared parental pay to mothers/primary adopters but not to fathers or mothers'/primary adopters' partners.

Here our employment and equalities experts consider the curious case of Mr and Mrs Snell and its potential impact for employers who offer enhanced shared parental or maternity pay.

Shared parental leave - recap

Shared parental leave is designed to encourage:

  • Sharing of "family" leave between working parents.

    In very broad terms, mothers and adopters can choose to curtail maternity and adoption leave to opt in to shared parental leave. Shared parental leave doesn't replace existing maternity and adoption leave rights. Instead it enables mothers/adopters to elect to convert a portion of that leave, so that up to 50 weeks' leave and 37 weeks' pay can be shared between both parents; and
  • Flexibility for when the leave is taken

    Parents can apply for continuous or discontinuous periods of leave which they can take at the same time or separately up to the child's first birthday/anniversary of placement.

Pay

The default position in relation to Statutory Shared Parental Pay is that it is paid at the flat statutory rate - currently £139.58 per week. But what is the position for employers who offer enhanced contractual maternity pay?

The Government's view is that there is no legal requirement for employers to offer corresponding enhancements to shared parental pay. Employers are free to offer more generous enhanced arrangements if they wish, but are not obliged. Whether an employer who fails to match maternity pay enhancements will face a successful discrimination claim remains to be seen. It is likely to turn on the particular circumstances of the employer and the reasons for adopting the policy in question.

Women who are entitled to enhanced contractual maternity pay need to be clear about their contractual position. A woman could find herself financially worse off when converting from maternity leave attracting contractual pay to statutory shared parental leave and pay. What is clear, is that an employer cannot offer enhanced contractual shared parental pay to mothers only. If an employer chooses to offer enhanced contractual shared parental pay it must offer it to both mothers/primary adopters and fathers/ mothers' or primary adopters' partners.

The curious case of Mr and Mrs Snell

A father has been awarded almost £30,000 for sex discrimination after his employer offered him only statutory pay during shared parental leave while mothers were given full pay for the first 26 weeks.

Facts

In the case Mr Snell v Network Rail Infrastructure Limited, both Mr and Mrs Snell worked for Network Rail. In anticipation of the birth of their first child they wanted to take advantage of shared parental leave.

Mrs Snell planned to take 27 weeks' leave, after which Mr Snell planned to take 12 weeks. He later planned to change his request from 12 to 24 weeks.

Network Rail's Family Friendly Policy defined shared parental leave as "a period of up to 52 weeks of leave to be shared between mothers/primary adopter/surrogate parents and their partners".

Under Network Rail's Family Friendly Policy in force at the time the request was made, mothers were entitled to contractual shared parental leave pay being:

  • 26 weeks on full pay,
  • followed by 13 weeks' statutory pay,
  • followed by a further 13 weeks' unpaid.

However, fathers/mother's partners were only entitled to:

  • 39 [sic] weeks' statutory pay,
  • followed by a further 13 weeks' unpaid.

Unhappy with the pay disparity in the policy, Mr Snell filed a formal grievance, which did not resolve the matter and Mr Snell brought a claim for unlawful sex discrimination.

Judgment of the Glasgow ET

By the time of the hearing, Network Rail conceded that Mr Snell was indirectly discriminated against in relation to his sex by the application of their family friendly policy which put him at a particular disadvantage as a man, when compared with women during periods of shared parental leave. Network Rail failed to provide evidence to support its earlier contention that the policy was objectively justified as pursuing the legitimate aim of recruiting and retaining women in a male dominated workforce.

As to remedy, the tribunal awarded:

  • £6,000 injury to feelings
  • £16,130 future loss
  • £1,750 pension loss
  • £2,780 uplift for failure to follow the Acas Code of Practice
  • £460 interest
  • £1,200 tribunal fees

The £16,130 for future loss was calculated by deducting from Mr Snell's normal weekly pay the statutory pay rate resulting in a weekly loss of £672 multiplied by 24 weeks (his intended SPL period).

Why the case raises some curious questions

It is unsurprising that the tribunal concluded that a policy which offers enhanced contractual shared parental pay to mothers but not fathers amounted to unlaw sex discrimination. As we stated back in April 2015, The impending 'birth' of shared parental leave, an employer cannot offer enhanced contractual shared parental pay to mothers only. If an employer chooses to offer enhanced contractual shared parental pay it must offer it to both mothers/primary adopters and fathers/ mothers' or primary adopters' partners.

But some aspects of this judgment are rather curious.

Curious

The entire judgment is predicated on the basis that the 27 weeks of leave Mrs Snell intended to take was statutory shared parental leave rather than statutory maternity leave. As Mr Snell was intending to take leave only after Mrs Snell intended to stop taking leave, there was no need for her to go onto shared parental. She could have taken maternity leave for the first 27 weeks and elected to convert the remaining 25 weeks of the leave period to shared parental leave to enable her husband to take it.

Curiouser

Under the Equality Act 2010, the two weeks of leave taken by Mrs Snell immediately following the birth must have been compulsory maternity leave. It is not possible to convert compulsory maternity leave to shared parental leave. It is odd and disappointing that the tribunal did not address the question of whether Mrs Snell was in fact on maternity leave at some point.

What this case does not address is the much more difficult question of whether it is discriminatory for an employer to offer enhanced pay for mothers on maternity leave but only offer statutory pay to both mothers and fathers on shared parental leave. Can such differing policies be lawful? Under the Equality Act 2010, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth. Government guidance is that there is no legal requirement for employers to offer corresponding enhancements to shared parental pay as enhanced maternity leave pay falls within the pregnancy/childbirth exception. But can maternity leave outside the compulsory period still be said to fall within the pregnancy/childbirth exception? At what point does leave relate to childcare shard by both parents rather than childbirth?

Curiouser and couriouser

Mothers and fathers do not have separate shared parental leave entitlements. Shared parental leave doesn't replace existing maternity leave rights. Instead it enables mothers to elect to convert a portion of their leave so that up to 50 weeks' leave and 37 weeks' pay can be shared between both parents.

In this case, Mr Snell's complaint was that the shared paternal leave pay provisions were different for mothers and fathers. However, Mr Snell was only intending to take the leave after his wife had used 27 weeks of the leave entitlement. Even if the policy had treated mothers and fathers equally, he still would only be entitled to statutory pay. Arguably, it is only the first 26 weeks of the 52 weeks of leave as a whole that attracted full pay, not the first 26 weeks as taken by the mother and the first 26 weeks as taken by the father.

Surprisingly this does not appear to have been argued before the tribunal. However, this may have been down to the drafting of the particular policy. Network Rail's policy clearly defined shared parental leave as a single period that could be shared between mother and fathers.  However, the shared parental pay policy arguably treats the enhanced pay periods for the mother and the father as two separate independent periods. The policy gives fathers up to 39 weeks' statutory pay, when under statute mothers can only transfer up to 37 weeks' of their statutory maternity pay period. Clearly the tribunal treated the policy as giving each parent an independent enhanced pay period.

What does this all mean?

As regards Network Rail employees this was great news for Mr Snell, but bad news for other employees. Unsurprisingly, Network Rail has simply levelled down its shared parental leave pay for mothers and fathers so both are now only entitled to the statutory minimum.

Employment tribunals are 'non-binding' and as such do not set a precedent that future tribunals must follow. Nevertheless, it may be persuasive indicating how tribunals are likely to treat such claims.

Employers should

  • Ensure shared parental pay policies treat mothers/primary adopters and fathers/mothers' or primary adopters' partners equally.
  • Ensure maternity/adoption/parental/shared parental pay policies clearly set out that any enhanced pay periods are a single continuous period, unless intended otherwise. For example, if the father only starts shared parental leave after the mother has already taken 26 weeks of paid leave (whether with the same or a different employer), the father will only be entitled to the enhancement applicable in the 27th week of leave.
  • Consider whether to offer enhanced shared parental pay which mirrors any enhanced maternity pay policy. While this is still a 'grey' area, there are currently further cases pending before the tribunals challenging disparate polices as sex discriminatory. Ask yourself:

    • Will enhanced SPL pay assist in attracting and retaining talent in your organisation?
    • What are the potential discrimination risks if you offer enhanced maternity pay but not enhanced SPL pay?
    • What is the basis for any disparity, in other word, what is the legitimate aim being pursued?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.