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Sex discrimination where different types of family leave paid at different rates?

Associate Solicitor, Helen Scott

The Employment Appeal Tribunal (“EAT”) in the case of Price v Powys County Council has considered whether a male employee was discriminated against when he would only be paid Statutory Shared Parental Pay (“ShPP”) if he took Shared Parental Leave, but female employees were entitled to enhanced pay if they took a period of Adoption Leave under the Respondent’s family leave policies.

Background

The Claimant and his wife, who were expecting their first child, planned that he would stay at home to care for the baby. The Claimant having enquired about the Respondent’s Shared Parental Leave policy, discovered that he would only be entitled to ShPP, which is equivalent to Statutory Maternity Pay. He decided, as a result, not to take a period of Shared Parental Leave, and subsequently brought a claim to the Employment Tribunal for direct sex discrimination, alleging that the Respondent’s policy was discriminatory as female employees who took Adoption Leave or Maternity Leave would be entitled to pay at higher rates.

The Law

The key point in this case related to the “comparator”. Where an individual alleges that they have been subject to direct discrimination, they must show that another person has treated them less favourably on the basis of a protected characteristic, compared to how they would have treated another person who does not share that protected characteristic (“the comparator”). This comparator can be a real person, or they can be hypothetical, but it is important that their circumstances are not materially different to that of the individual alleging discrimination.

In this case, the Claimant sought to rely on two comparators: the first was a female worker on Maternity Leave in receipt of Maternity Pay; and the second was a female worker on Adoption Leave in receipt of Adoption Pay.

Decision

The Employment Tribunal dismissed the Claimant’s claim as they rejected his comparators. The first comparator of a female worker on Maternity Leave in receipt of Maternity Pay was rejected as there was a material difference between the Claimant’s circumstances and those of his comparator, as found by of the Court of Appeal in Capita Customer Management Ltd v Ali [2019] EWCA Civ 900. It also rejected the second comparator, a female worker on Adoption Leave in receipt of Adoption Pay, finding that, although there were more similarities between the Claimant and this comparator, their respective situations were still not the same.

The Claimant appealed to the EAT, pursuing his argument in relation to a female worker on Adoption Leave being the correct comparator, with the underlying purpose of both Shared Parental Leave and Adoption Leave being “the facilitation of childcare”.

The EAT dismissed the Claimant’s appeal, finding that there was no sex discrimination where the Claimant was paid less for a period of Shared Parental Leave than a female employee would receive for a period of Adoption Leave. In agreeing with the Tribunal, the EAT highlighted that the main purpose of Adoption Leave was not simply to facilitate childcare and was not the same as Shared Parental Leave. Therefore, there was a material difference between the Claimant and his chosen comparator, and this meant his claim would fail.

Comment

This decision will no doubt be welcomed by employers. Various types of family-related leave are available to employees, but they do not all have identical purposes and different rates of pay in respect of different types of leave can be non-discriminatory, in particular, this case gives employers comfort who offer enhanced Adoption Pay, but not enhanced Shared Parental Leave Pay.

Employers may still wish to consider the value of offering enhanced Shared Parental Leave Pay with the aim of encouraging male employees to take this up, with the potential wider aim of reducing the often recognised inequal burden of childcare responsibilities on women.

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