Shared Parental Leave, how to avoid discrimination claims from male employees
Do you currently offer enhanced maternity pay to women on maternity leave, i.e. amounts over statutory maternity pay? If yes, you will need to consider whether or not to offer enhanced shared parental pay.
Historically, offering enhanced maternity pay did not amount to unlawful discrimination because women were granted special protection in their biological position as a mother, therefore justifying different treatment and pay. However how valid this argument will be going forward is questionable. Once parents opt to share statutory parental leave, it could be difficult to that argue that the mother has a protected biological position. This may present a discrimination risk for employers who do not offer the same enhanced maternity pay to fathers taking shared parental leave.
To date all guidance issued by the Government has ignored this issued. They have taken the stance that as enhanced payments are not imposed by legislation they will not be commenting on the issue. Consequently, employers looking to stay within the law on this issue will have to await guidance from tribunal decisions.
In the meantime the advice to employers who pay enhance maternity pay is to review all related policies and procedures. When implementing changes, possible considerations might include:
• To provide an enhanced maternity scheme and a separate shared parental pay scheme in tandem, but advise that parents who opt for shared parental leave are not eligible for enhanced maternity pay;
• To reduce enhanced maternity payments to the statutory level
• To offer an equivalent enhanced shared parental leave pay scheme that applies to parents of either gender, although the most expensive option this may well be the safest option available to employers.
This is a complex issue and one where what is correct, may well depend on the business needs and other factors, such as the gender demographics of individual workforces. Being such a grey area employers are well advised to be cautious when making any decisions.
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