Shared Parental Leave – first Tribunal decision

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Shared parental leave was introduced by the government in April 2015 It was a step towards more flexible, family-friendly workplaces and offered both parents the opportunity to split the usual 52-week maternity or adoption leave entitlement and move away from the traditional ideology that mum stays at home with the baby.

We reported back in August that there had been a low uptake in shared parental leave and that this could have been due to many employers offering enhanced maternity pay but only statutory shared parental pay. There is a risk that this practice could be discriminatory and as yet, it remains untested in the Tribunal, however, a recent case has highlighted the importance of paying mothers/primary adopters the same amount of shared parental pay as fathers/secondary adopters.

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The Scottish case of Snell v Network Rail is the first Tribunal case involving shared parental leave since its introduction. The case was brought by Mr Snell; however, both he and his wife worked for Network Rail.

Prior to the birth of their baby in January, Mr and Mrs Snell opted to share their leave, with Mrs Snell taking the first 27 weeks’ leave and Mr Snell taking 12 weeks after that. Under the company’s shared parental leave policy (known as their family friendly policy), mothers and primary adopters were entitled to 26 weeks’ full pay (which included maternity and adoption pay), 13 weeks’ statutory shared parental pay and 13 weeks’ unpaid leave. In contrast, partners and secondary adopters were entitled to 39 weeks’ shared parental pay and 13 weeks’ unpaid leave.

Mr Snell raised a grievance, stating that the payments to mothers on shared parental leave were significantly different to the payments to fathers and that because of this; he felt he was being discriminated against because of his sex. Network Rail dismissed the grievance stating that by paying statutory pay, it had met its legal obligations. It also dismissed Mr Snell’s subsequent appeal.

By the time of the Tribunal Hearing, Network Rail had conceded that their policy was indirectly discriminatory and that Mr Snell had been put at a particular disadvantage as a man when compared with women during periods of shared parental leave under their family friendly policy.

A remedy hearing took place following Network Rail’s acceptance of their error, which saw Mr Snell awarded £28,321. His award included £6,000 for injury to feelings which took into account the stress he had suffered due to the uncertainty of his level of pay as well as the company’s delays in dealing with his grievance, which meant he was admitted to hospital prior to the birth of his baby.

Network Rail have reportedly now amended their policy, reducing the payments so that mothers, partners, primary and secondary adopters all now receive statutory pay only (39 weeks at the lower of the government’s prescribed rate (currently £139.58) or 90% of the worker’s earnings), less any weeks spent in receipt of statutory maternity pay, adoption pay or maternity allowance.

Whilst this case is only a first instance decision and so is not binding, it is advisable for employers to review their policies to ensure they aren’t following the same approach as Network Rail.

For any help or advice in relation to shared parental leave and pay or any other family friendly rights, please contact Catharine Geddes or another member of LA’s Employment and HR Team.

17th October 2016

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