Medical staff often have to choose between different treatment options, which can lead to...
The introduction of the Shared Parental Leave Regulations in April 2014 has given eligible parents more flexibility in the way that they take leave after the birth or adoption of a child. Shared parental leave (SPL) enables mothers to share up to 50 weeks' maternity leave and 37 weeks' pay with their partner. Under the Regulations, employees taking SPL are entitled to Shared Parental Pay at the statutory rate, which is currently £139.58 per week, or 90 per cent of the employee's average weekly earnings, whichever is lower. As with maternity pay, it is open to employers to offer an enhanced rate of Shared Parental Pay.
There is no statutory requirement for employers that offer enhanced maternity rights to women to 'mirror' those arrangements for employees who opt to take SPL. However, guidance produced by the Government – 'Employers' Technical Guide to Shared Parental Leave and Pay' – stresses that if an enhanced scheme is offered to a mother on shared parental leave, it could constitute sex discrimination if the same rights are not afforded to fathers or a mother's partner. That point was in issue in the recent case of Snell v Network Rail Infrastructure Limited.
David Snell and his wife both worked for Network Rail and planned to take advantage of the SPL provisions after the birth of their baby in January 2016. Mrs Snell intended to take 27 weeks' leave and Mr Snell proposed to take the next 12 weeks.
Mr Snell discovered that according to Network Rail's SPL policy, his wife would receive full pay for 26 weeks whilst on leave, but he would only be paid statutory shared parental pay. He therefore raised a grievance on the ground that he was being discriminated against because of his sex. Network Rail failed to comply with the time limits specified in its grievance policy, which prompted Mr Snell to write to his manager complaining that the delay was causing him and his wife considerable stress and the uncertainty meant that they were unable to make care arrangements for their baby. In the event, his grievance was eventually dismissed and he proceeded with an Employment Tribunal (ET) claim for indirect sex discrimination.
Initially, Network Rail intended to contest the claim on the basis that its policy could be justified as being a proportionate means of achieving the legitimate aim of recruiting and retaining more female staff in what was a predominantly male workforce. However, it later changed its mind and before the hearing took place, changed its SPL policies so that mothers and their partners taking SPL are now both paid only the statutory rate.
The ET awarded Mr Snell a total sum in compensation of £28,321.03. This included an award of £5,000 for injury to feelings on account of the stress caused because of Network Rail's delay in completing its grievance procedures in a timely fashion. The award was uplifted by 20 per cent due to its unreasonable failure to follow the guidance set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures.
This was an ET decision and so is not binding on other tribunals. Furthermore, Network Rail's arguments in justification of its SPL policy were not tested. However, employers are advised to review their own SPL and maternity policies to consider whether their treatment of men and women is different, and if so, whether this can this be objectively justified in the event of a challenge. The question of whether it is discriminatory to pay women who take maternity leave an enhanced rate of maternity pay whilst paying the statutory rate to those who choose SPL has yet to be tested.