UK: Shared parental pay - care needed when handling grievances or changing policy on pay

Employers should have effective processes in place to handle any grievances challenging their parental leave pay policies.  If the policy is revised, transitional provisions should make clear whether the new policy applies to parents who have already given notice of intention to take shared parental leave under the old policy, but not yet requested or taken specific periods, or who subsequently give notice to vary the period(s).

In David Snell v Network Rail, the employer's original policy provided that a mother or other primary caregiver (eg a primary adopter) would receive 26 weeks' enhanced pay during shared parental leave, whereas the father or secondary caregiver would receive only statutory pay.  There were considerable delays by the employer in handling a grievance received from a father-to-be that this amounted to sex discrimination, both in finding someone to hear the grievance and in obtaining legal advice.  His grievance was rejected on the basis that the correct comparator was a female secondary caregiver (and not a mother on shared parental leave), who would be paid at the same rate as the claimant, and that in any event the policy was justified by its aim of recruiting and retaining women in a male dominated workforce.  (This was the justification successfully used by the employer in an earlier tribunal case concerning enhancement of pay during maternity leave but not additional paternity leave.)  It did not at that point accept the father's argument that shared parental leave is not for the protection of the biological condition of mothers and their special bond with their children, but solely for childcare, and therefore no distinction can legitimately be made between mothers taking shared parental leave (as opposed to maternity leave) and fathers taking the same type of leave.

The father lodged a tribunal claim.  Prior to the period of leave requested by the claimant, the employer then revised its policy to level down pay to the statutory rate for all parents, and at tribunal conceded that the old policy was indirectly discriminatory.

The tribunal hearing therefore only concerned the level of compensation.  The employer's argument that compensation could not be awarded on the basis there was no intention of discriminating was rejected, as it had clearly drafted its policy in such a way that fathers would receive less than mothers. Because the new policy had not contained any transitional provisions, the tribunal concluded that the old policy continued to apply to leave taken pursuant to an initial request made under that old policy.  Therefore the claimant would suffer financial loss as a result of discriminatory terms during his leave.  He was awarded £5,000 for injury to feelings and the unreasonable delays in handling his grievance justified a 20% uplift in compensation for failure to comply with the Acas Code of Practice, giving a total award of over £28,000.

The decision does not shed any light on whether it may be unlawful discrimination for an employer to enhance maternity pay but keep shared parental pay (for all parents) at the statutory rate.  The Government's view was that this is not unlawful, but the legal position and in particular the effect of EU case law is not clear cut and there remains the potential for claims such as indirect discrimination or unlawful detriment to succeed.