Employers can pay more during adoption leave than shared parental leave

The Court of Appeal has ruled that paying employees who take adoption leave more than those who take shared parental leave is not sex discrimination.

Employer enhances maternity and adoption pay but not shared parental pay

Mr and Mrs Price planned to take shared parental leave so that Mr Price could care for their baby while Mrs Price returned to work.  The Council paid enhanced maternity and enhanced adoption pay but when Mr Price enquired about shared parental pay, the Council told him this would not be paid at an enhanced rate. As a result, he decided not to take shared parental leave and brought an employment tribunal claim for direct sex discrimination. 

Employment tribunal rejects sex discrimination claim

Mr Price claimed it was unlawful sex discrimination to pay a man who took shared parental leave less than a woman who took maternity leave or adoption leave. The employment tribunal rejected his claim, ruling that he could not compare himself to a woman on maternity leave or adoption leave because their circumstances were materially different. 

As regards a comparison with women on maternity leave, it followed the Court of Appeal decision in Ali v Capita Management. The circumstances of a woman on maternity leave and a man on shared parental leave are materially different. This is because the underlying purpose of the two types of leave is different. The purpose of maternity leave is to ensure the health and wellbeing of the mother who has given birth, whereas the purpose of shared parental leave is to facilitate childcare. 

The employment tribunal went on to consider whether the position is different for adoption leave.  It considered there are more similarities between the position of a man on shared parental leave and a woman on adoption leave, but found that their respective situations were materially different in a number of respects and so a comparison could not be made. 

The correct comparator for Mr Price was a woman on shared parental leave. Since they would have been paid the same, he had not been discriminated against.  

Employment Appeal Tribunal agrees no discrimination 

Mr Price appealed to the Employment Appeal Tribunal. He argued that the tribunal had been wrong to find that the underlying purpose of adoption leave is not to facilitate of childcare and wrong to conclude that there are material differences between the circumstances of a man of shared parental leave and a woman on adoption leave. 

The Employment Appeal Tribunal rejected his appeal. Although facilitation of childcare is one purpose of adoption leave, its purpose goes well beyond childcare alone and includes bonding with the child and ensuring the health and safety of adoptive parents. The tribunal had been entitled to find that there are material differences between the circumstances of a man on shared parental leave and a woman on adoption leave. As a result, Mr Price could not compare his treatment with that of a woman on adoption leave and his sex discrimination claim failed. 

What does this mean for employers?

Employers who do not enhance pay during share parental leave will welcome this clarification. It was already clear that employers can enhance maternity pay without this amounting to sex discrimination. It is now clear that employers who enhance adoption pay but not shared parental pay are not acting unlawfully.