Employers who offer enhanced maternity pay may face discrimination claims if they do not extend the benefit to men when new laws on shared parental leave come into force.
The warning comes from Tom Kerr Williams, a partner at law firm DLA Piper, in an article for Personnel Today – Will shared parental leave oblige firms to offer enhanced paternity pay?
Under the new shared parental leave rules, parents will be able to share statutory maternity leave and pay. The mother is required to take the first two weeks post-childbirth as leave for health and safety reasons, but the remaining 50 weeks of leave and 37 weeks of pay can be shared by both parents. The rules apply to parents whose expected week of childbirth is on or after 5 April 2015.
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, once parents can opt to share statutory paternity benefits over 50 weeks, it could be argued that special treatment for women can no longer be legally justified. Kerr Williams says that the principle could apply to enhanced maternity pay: “It is hard to argue that such leave protects the mother’s biological position if she is at liberty to transfer all but the first two weeks to the child’s father. This may present a discrimination risk for employers who do not offer the same enhanced maternity pay to fathers taking shared parental leave.”
A European Court case in 2010, Roca Alvarez v Sesa Start Espana ETT SA, set a precedent that special protection for mothers in relation to their biological position can be challenged. The court found that a Spanish law allowing mothers to take time off to feed an unweaned child under the age of nine months was discriminatory to men. This was because feeding and devoting time to the child could be carried out just as well by the father as by the mother.
When shared parental leave rules are in force, a tribunal could make an award for injury to feelings and financial losses if it finds a male employee has suffered as a result of discriminatory treatment, says Kerr Williams. However, this is likely to be limited to the enhanced pay for the shared parental leave period.
Organisations will need to revise their policies in response to the shared parental leave rules, which are being introduced as part of the Children and Families Act 2014. Kerr Williams advises them to consider the following options in response to concerns about discrimination claims relating to enhanced maternity pay:
- provide an enhanced maternity scheme and a shared parental pay scheme in tandem, but advise that parents who opt for shared parental leave are not eligible for enhanced maternity pay; and
- offer an enhanced “parental” leave and pay deal which applies to parents of either gender.
Ed Bowyer, a partner in the employment law team at Hogan Lovells, says that “the safest but most expensive” option for employers will be to offer enhanced parental leave and pay to either parent.
A recent survey of HR professionals by Hogan Lovells found that 30% expected shared parental leave to have a positive impact in terms of take-up by fathers. Of those, 70% planned to enhance their shared parental pay or set it at the same level as maternity pay.
The Government has ignored the potential cost for employers of equalising shared parental pay with current enhanced maternity pay. Its impact assessment on the new regulations, states: “Since none of these approaches is being imposed by the proposed legislation, the costs are not considered here.”
The Government anticipates that, initially at least, take-up for shared parental leave will be only between 2% and 8%. The current system of additional paternity leave (APL), which entitles fathers to up to 26 weeks’ leave to care for a child from 20 weeks after its birth, has attracted little take-up. According to a survey by the TUC last year, only 0.6% of eligible fathers exercised their right to APL in 2011/12.
Preliminary results of research by XpertHR, to be published this summer, indicate that almost three-quarters of HR professionals support the legislation’s goals, but they voiced concerns about administrative complexity and costs, especially among small and medium-sized enterprises.