Discriminatory shared parental pay policy: father awarded £27,000 compensation

An employment tribunal has awarded £27,000 for indirect sex discrimination arising from the terms of an employer’s enhanced shared parental pay scheme.  

Speedread

An employment tribunal awarded £27,000 for sex discrimination arising from the terms of an employer’s enhanced shared parental pay scheme.  Mothers, primary adopters and first surrogate parents were entitled to enhanced pay, whereas fathers, secondary adopters and secondary surrogates were entitled to statutory pay only.  The employer argued that the difference in treatment was due the father's status as a partner, and sex was not a releavnt factor.  It also argued that any indirect discrimination was justified as a proportionate means of achieving its legitimate aim of recruiting and retaining women in a male dominated workforce.  In the event, the employee withdrew the direct discrimination claim and the employer admittted indirect discriminaton and so these arguments were not explored.  The employment tribunal awarded the employee £27,000 compensation.  

Facts

In Snell v Network Rail Infrastructure, Network Rail’s shared parental leave policy provided enhanced pay for mothers, primary adopters and first surrogate parents on shared parental leave. They could receive up to 26 weeks’ full pay, followed by 13 weeks’ paid at the statutory rate and 13 weeks’ unpaid. Partners, secondary adopters and secondary surrogate parents, by contrast, were only entitled to up to 39 weeks’ statutory pay and 13 weeks’ unpaid. Mr Snell and his wife both worked for Network Rail and their baby was due in January 2016. Mr Snell applied for shared parental leave in August 2015, indicating that his wife intended to take 27 weeks and that he intended to take 12 weeks. Network Rail told him that he would receive 12 weeks statutory shared parental pay.

Mr Snell submitted a grievance on 22 September 2015, complaining that he was being discriminated against because of his sex. He pointed to:

• government guidance which indicates it could constitute sex discrimination to offer enhanced pay to a mother on shared parental leave but not to a father/mother’s partner;
• Acas guidance which says that “the important thing is that within a Shared Parental Leave scheme, men and women are treated equally and paid at the same rate in the same circumstances.

There were delays in hearing Mr. Snell’s grievance. He was told that his grievance had not been upheld on 5 January 2016, the day before his wife was due to give birth. He appealed unsuccessfully. Network Rail said its policy was not discriminatory. His entitlement to shared parental pay was calculated on the basis that he was a “partner”. The sex of a partner was not a relevant factor in determining what pay the partner received.

Mr Snell brought a tribunal claim, alleging direct and indirect sex discrimination. Network Rail argued that Mr Snell had used the wrong comparator for his direct discrimination claim. The appropriate comparator was a female partner, not a mother, and a female partner would have been paid the same. In its defence to the indirect sex discrimination claim, Network Rail argued that if its policy put Mr Snell at a disadvantage because of his sex, it could be objectively justified as a proportionate means of achieving its legitimate aim of recruiting and retaining women in a male dominated workforce.

Decision

In the event, Mr Snell withdrew his direct discrimination claim and Network Rail decided not to contest the indirect discrimination claim. The employment tribunal ruled that the policy was indirectly discriminatory and ordered Network Rail to pay:

• £5,000 for injury to feelings
• £16,000 for loss of enhanced shared parental pay
• £1500 for loss of pension contributions

It also increased the compensation by 20% due to Network Rail’s unreasonable failure to follow the Acas Code and awarded interest.

Implications

It is disappointing that the employment tribunal was not required to consider the employer’s arguments on the correct comparator (for the direct discrimination claim) or on justification (for the indirect discrimination claim). Most employers who have decided to enhance shared parental pay do enhance it for both mothers and fathers so that there is no risk of a direct discrimination claim. In addition, some employers enhance maternity pay but not shared parental pay and seek to rely on similar justification arguments to those relied on by Network Rail. Further consideration of these issues would therefore have been helpful.

Network Rail changed its shared parental leave policy before the employment tribunal hearing so that it no longer enhances shared parental pay at all.