Shared Parental Leave is the right afforded to parents to take time off following the birth or adoption of a child after a period of Maternity Leave has ended. The Government guidance confirms that to be eligible to take Shared Parental Leave, the employee must share responsibility for the child with one of the following; –
- Their wife, civil partner or joint adopter
- the child’s other parent
- their partner (if the partner lives with the employee and the child)
Also, the employee or their partner must be eligible for maternity pay or leave, adoption pay or leave or Maternity Allowance and; –
- have been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the due date (or by the date the employee is matched with the adopted child); and
- stay with the same employer while taking Shared Parental Leave
Statutory pay for Shared Parental Leave is calculated by reference to Maternity Pay received and the timing and duration of the leave. However, and ever since the introduction of Shared Parental Leave, there have been debates as to how contractual enhancements to pay for Shared Parental Leave should be dealt with. In particular it was unclear whether failing to contractually enhance pay for Shared Parental Leave in accordance with contractual enhanced Maternity Pay amounted to direct sex discrimination. The EAT in the recent case of Capita v Ali cleared up the issue.
At first instance, the Tribunal in this case had concluded that following the initial two weeks of maternity leave, the purpose of maternity leave is childcare and that thereafter contractual enhancements to Maternity Pay and Shared Parental Leave pay should be the same.
However, the EAT decided that the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth. The level of pay is inextricably linked to the purpose of the leave. The EAT held that the father’s situation was not comparable to a woman on maternity leave.
The EAT went on to state that the purpose of shared parental leave is different from that of maternity leave and maternity pay and further went on to observe that shared parental leave is given on the same terms for both men and women.
It was on this basis that the EAT concluded that paying a higher level of maternity pay than pay which would be given to either sex on shared parental leave does not amount to direct sex discrimination. It was further held that payment of maternity pay at a higher rate did fall under s13(6)(b) of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.