The Employment Appeal Tribunal (EAT) has held in Price v Powys County Council that a man on Shared Parental Leave was not directly discriminated against because of sex when he was paid less than a woman on adoption leave.

Basic facts 

The council’s Shared Parental Leave Policy (ShPL) provided for employees to receive an amount equivalent to statutory maternity pay (SMP) while those on adoption leave were entitled to more than the statutory payment.

When Mr Price and his wife found out that they were to have their first child, it was decided that he would stay at home to care for the baby while she returned to work.

He asked for a monthly breakdown of the pay that he would receive if he were to take 37 weeks’ ShPL. After a delay of several months, he was told that he would only be entitled to an amount equal to SMP. As a result, he decided not to take the leave.

He lodged a tribunal claim for direct and indirect sex discrimination. The indirect discrimination claim was based on the delays that had occurred in providing him with the requested information. For the direct claim, he compared himself with a female worker on maternity leave in receipt of enhanced maternity pay as well as a female worker on adoption leave (AL) in receipt of enhanced adoption pay under the employer’s policies.

Tribunal decision

The tribunal dismissed the claim on the basis that there was a “material difference”

between Mr Price and his comparators contrary to section 23 of the Equality Act 2010.

With regard to the comparator on maternity leave, the tribunal relied on the decision in Ali v Capita Customer Management Ltd and anor (weekly LELR 630) in which the Court of Appeal held that a man on ShPL could not compare himself with a woman on maternity leave because their circumstances were materially different. In particular, the purpose of maternity leave was to ensure the health and safety of the mother following pregnancy and childbirth whereas ShPL was to enable parents to provide childcare.

With regard to the comparator on adoption leave, the tribunal held that the comparison was materially different in that:

  • AL was in part compulsory, whereas ShPL was entirely optional
  • AL could begin before the actual placement of a child, whereas ShPL could not
  • AL was an immediate entitlement on placement, whereas ShPL was not
  • ShPL could only be taken with the partner’s agreement to give up AL
  • ShPL had to be taken within 52 weeks of placement.

The correct comparator was a female worker who had applied for ShPL in an adoption situation, that is where the partner had taken statutory adoption leave. As this comparator would have had the same treatment since both would have been paid at the same statutory rate, the tribunal dismissed the claim.

Mr Price appealed to the EAT in relation to the tribunal’s rejection of his comparison with a female employee on adoption leave on the basis that the underlying purpose of AL is the same as or similar to that of ShPL, namely to facilitate childcare.

EAT decision

Dismissing the appeal, the EAT agreed with the tribunal that the purpose of ShPL and AL was not the same. The EAT took into account that the Adoption and Children Act 2006 provides that the paramount consideration for adoption is the child’s welfare throughout their life. Health and safety is also a consideration since the purpose of enabling parents to take AL before a child is placed with them is to prepare both themselves and the environment to ensure it is appropriate and safe for the adopted child.

The EAT considered that the choice as to which parent would take AL was very different from a parent who chose to curtail their entitlement to AL to enable the other parent to take ShPL. It was therefore clear that the purpose of the AL was not just to provide childcare.

Because of these material differences, the EAT dismissed the appeal.

Comment 

The decision of the EAT is disappointing and provides yet more evidence that statutory ShPL is not fit for purpose. Good employers who are genuinely committed to enabling working parents to share childcare responsibilities have negotiated agreements with unions which ensure parents have the same entitlement to enhanced pay whatever form of family leave is taken.