The Government has announced changes to the newly extended Coronavirus Job Retention Scheme (CVJRS) and extended the payment of SSP in certain circumstances.
A recent case in the Court of Appeal will no doubt bring a sigh of relief for employers, but a corresponding sigh of disappointment may be uttered for equality and gender balance in the workplace.
The decision in the cases of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall concern the rights of fathers to receive enhanced payments when absent on shared parental leave matching female employees’ enhanced maternity packages. Failure to provide such enhanced packages, they argued, amounted to discrimination on the grounds of their gender.
Current rights and entitlements
Maternity leave and payment
Employed mothers are entitled to 26 weeks’ ordinary maternity leave and a further 26 weeks' additional maternity leave. In addition, employees are entitled to 39 weeks’ statutory maternity pay (subject to them meeting certain criterion). Many employers, however, offer a maternity package that is more generous than the 39 weeks’ statutory maternity pay (SMP).
Shared parental leave and payment
Parents may decide to share this period of 52 weeks’ leave and receive payment (the same rate as SMP) for 37 weeks of that period (the remaining two weeks of leave and payment is the period of compulsory maternity leave that all mothers are required to take immediately after childbirth). The majority of employers do not offer any enhanced payment for shared parental leave, and so payment is limited to the level of SMP.
In Ali v Capita Customer Management Ltd, Mr Ali was entitled to two weeks’ paternity leave at full pay and then up to 26 weeks’ additional paternity leave on statutory shared parental leave pay. His female colleagues, however, were entitled to enhanced contractual maternity pay consisting of 14 weeks’ full pay and then 25 weeks’ SMP. This, he argued, was direct discrimination because he had been treated less favourably purely because of his gender.
In Chief Constable of Leicestershire Police v Hextall, Mr Hextall took 14 weeks’ shared parental leave and was paid shared parental leave pay for the duration. His female colleagues, however, were paid full pay for 18 weeks under his employer’s maternity policy. He similarly felt that he had been treated less favourably on account of his gender, as if he had been a woman, he would have been entitled to a more beneficial payment package for his period of leave.
The Court of Appeal took the various claims made by Messrs Ali and Hextall and decided that neither men had been discriminated against, either directly or indirectly and there was no equal pay claim to be made. The Court of Appeal found that special treatment and protection is afforded to women on maternity leave, as in its view the purpose of maternity leave is far wider than the facilitation of childcare, which it concluded was the main purpose of shared parental leave. The Court of Appeal held that this then precludes any comparison between men on shared parental leave and mothers on maternity, and without comparison, no discrimination can be proven. Additionally, the sex equality clause, as implied in employment contracts by the Equality Act 2020, does not apply when different terms afford special treatment to women in connection with pregnancy or childbirth. Hence no equal pay claim either.
This will come as welcome news to employers as there are no expensive changes to be made to shared parental leave provisions. However, for gender equality in the workplace, the news may not be so good. The take up of shared parental leave by fathers is still comparatively low. This may, in part, be because of the detrimental effect on family incomes of substituting an enhanced maternity package for statutory parental leave pay. The European Parliament is looking at work-life balance for carers, with a view to increase the take-up on family related leave and flexible work arrangements. It is unlikely that changes will be made before October and so any recommendations, whilst they may be valuable, will have no legal effect in a Brexited Britain. Many employers, however, will be looking at the bigger picture of creating equality in the workplace, and may decide to offer enhanced pay for both parents who wish to take time off during the first 52 weeks after the birth of their child.
For more information
For more information on this briefing, or if you require any assistance with your workforce arrangements, please contact Hazel Findlay.
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