Extending enhanced maternity benefits to men

Recent developments in family friendly policies have dominated the headlines.  In particular, the increase in paternity leave and pay, the extension to the right to request flexible working and the consultation on the new flexible system of shared parental leave.  These represent a growing shift towards a more ‘gender neutral’ approach to parental responsibility. 

While generally welcomed, employers may encounter problems if they don’t adapt policies and procedures.  One issue to consider is whether enhanced maternity benefits should be extended to men on paternity leave.  The position taken by the previous Government was that, since additional paternity leave (APL) can be taken by employees of either sex, so long as a man taking APL is in the same position as a woman taking APL (for example the same-sex partner of a birth mother) there is no less favourable treatment.

However, this position may now be open to challenge following a recent Spanish case where the ECJ held that linking a father’s entitlement to breastfeeding leave to the employment status of his partner – when no such restriction applied to female employees wishing to take breastfeeding leave – amounted to sex discrimination.  In making it harder for men to qualify for the leave, the national law perpetuated the traditional gender roles by keeping men in a subsidiary position when it came to parental duties. 

In UK law the Equality Actallows special treatment to women in connection with pregnancy and childbirth.  It is likely, following the ECJ decision, that this provision will be construed narrowly so that only provisions designed to protect the biological condition of women following pregnancy, or the special relationship between mother and baby, will qualify for this exception.  Employers may struggle to show that enhanced maternity benefits meet these criteria.

It is therefore arguable that employers who offer enhanced benefits to women on maternity leave should extend them to men on paternity leave to avoid discrimination. However, this point is yet to be tested in the UK courts. 

Employers who currently offer enhanced maternity benefits, for instance providing a bonus for returning to work early, should review their purpose and whether they could apply to men as well as women.  If the answer is yes, employers should consider removing the benefits from women altogether, or offering similar terms to men, in order to avoid a challenge under existing discrimination law.

This article was written by partner Piers Leigh-Pollitt