Shared parental leave and pay was introduced to help parents have more flexibility in how they care for their child in his/her first year. It was introduced to enable the mother and her partner to share the leave and pay so long as the partner meets certain eligibility requirements. More information on shared parental leave is available in our article: Shared Parental Leave – What you need to know.
The case of Snell v Network Rail
Shared parental leave came into effect on the 5th April 2015 and we have just seen the first tribunal decision relating to this in Scotland. It relates to the case ‘Snell v Network Rail ETS/4100178/2016’ where Snell successfully won a sex discrimination claim over Network Rail’s policy on enhanced shared parental pay. As a result, Snell was awarded £28,321.
Summary of the case
The summary of the case is that under Network Rail’s family friendly policy, partners are entitled to up to:
- 39 weeks’ statutory shared parental pay and;
- A further 13 weeks’ unpaid leave
Under the same policy, mothers and primary adopters are entitled up to:
- 26 weeks’ shared parental pay at full pay
- 13 weeks’ statutory shared parental pay and;
- 13 weeks’ unpaid leave
Details of the case
In this case, both the mother and the claimant worked for Network Rail. Snell raised a grievance on the basis that he felt Network Rail’s policy amounted to sex discrimination because his pay, compared with that of his wife, would be less.
It took from September 2015 to January 2016 to provide an outcome to the grievance and it was rejected for the following reasons:
- for there to be sex discrimination, the company would need to pay women a different rate to men, and that it was entitled to give a different status to the mother and partner
- Mr Snell’s comparator would be “a woman sharing parental leave, not the mother”;
- it is up to the employer to decide how its enhanced shared parental pay works;
- the policy is designed to retain female employees in a male-dominated industry; and
- Network’s Rail’s solicitors provided advice that the company’s approach is in line with the approach of most employers that they represent.
Mr Snell appealed the decision and put a claim into an Employment Tribunal for direct and indirect sex discrimination. His appeal focussed on the following elements:
- the length of time taken to deal with his grievance;
- Network Rail’s choice of comparator, suggesting that the correct comparator is “a woman taking shared parental leave to care for a child”;
- that “there is no material difference between a father taking shared parental leave and mother taking shared parental leave”;
- that Network Rail’s policy reinforces stereotypes that mothers are the primary care givers; and
- that he could not find any examples of other employers that pay mothers an enhanced rate while paying fathers the statutory minimum.
Mr Snell’s appeal was also rejected and Network Rail subsequently changed their policy on shared parental leave so that both the mother and the partner receive only statutory shared parental pay. Any enhancement was removed from their policy.
Mr Snell ended up dropping his direct sex discrimination claim but the tribunal found that Mr Snell had been indirectly discriminated against in relation to his sex. His award of £28, 321 was made up of the following:
- £16,129 for future loss of earnings, based on his amended request to take 24 weeks’ shared parental leave;
- £6,000 for injury to feelings, considering the stress and uncertainty that had been caused;
- £2,779 for the employer’s failure to follow the ACAS code of practice on disciplinary and grievance procedures given the flaws in the grievance process;
- £1,753 for pension loss; and
- £458 in interest.
What should you do considering this outcome?
The first thing is to review your policy on shared parental leave to ensure it’s not discriminatory in any way and that it’s aligned with your other family related policies.
When shared parental leave was first introduced in April 2015, some legal experts anticipated sex discrimination claims where maternity pay is enhanced but shared parental pay is not enhanced. Whilst this hasn’t been tested in the courts to date, it is worth reviewing both policies and considering whether they are likely to be discriminatory.
If you do not have a policy, consider introducing one as this enables you to consider your position on this matter before having to manage a real case. It also sets a clear message to your team about your position on this subject.
If this article has highlighted any issues in relation to your own organisation, please do not hesitate to contact us on 01271 859 267 or help@fitzgeraldhr.co.uk.
