Is it lawful for a male employee on shared parental leave to be paid less than a female employee on adoption leave?

Is it lawful for a male employee on shared parental leave to be paid less than a female employee on adoption leave?

Is it lawful for a male employee on shared parental leave to be paid less than a female employee on adoption leave?

The Employment Appeal Tribunal has confirmed that it is not discriminatory on grounds of sex to pay a male employee taking shared parental leave at a lower rate than a female employee taking adoption leave. A male employee taking shared parental leave cannot compare himself to a female employee taking adoption leave because of material differences between the two forms of leave. The correct comparator is a female employee taking shared parental leave. 

In Price v Powys County Council, the Appellant, Mr Price, intended to be take shared parental leave after the birth of his child to care for the child while the mother returned to work (after completing two weeks’ compulsory maternity leave). However, Mr Price changed his mind after learning that he would only be entitled to an amount equal to statutory maternity pay under the shared parental leave policy of his employer, Powys County Council. He discovered that Council employees who take adoption leave were, however, entitled to full pay. Mr Price compared his position to that of a female employee on adoption leave and contended that the Council’s policies were discriminatory.

Primary purpose of shared parental leave is childcare

The Employment Tribunal (ET) dismissed his claim for direct discrimination on the basis that there are material differences between the Council’s scheme for adoption leave and that for shared parental leave, meaning that Mr Price’s chosen comparator (a female employee on adoption leave) was inappropriate. In the EAT’s view, Mr Price’s correct comparator is a female employee on shared parental leave.

Mr Price appealed to the Employment Appeal Tribunal (EAT). His appeal was unsuccessful. The EAT agreed with the ET’s decision that there are material differences between adoption leave and shared parental leave, primarily that the predominant purpose of shared parental leave is to facilitate childcare, whereas childcare is not the overriding aspect of adoption leave. 

Consistent with established case law

The EAT’s decision is in keeping with previous case law that has focussed on the predominant purpose of shared parental leave being childcare and how this differs from other forms of family friendly leave. For example, in the highly publicised case of Ali v Capita Customer Management Ltd, the Court of Appeal held that a man taking shared parental leave could not compare himself to a woman taking maternity leave because their circumstances were materially different. In Ali, the Court identified a number of significant differences between the two forms of leave, emphasising that the primary purpose of maternity leave is the health and wellbeing of the birth mother; whereas the primary purpose of shared parental leave is childcare.

Material differences between shared parental leave and adoption leave

In Mr Price’s case, the EAT identified a number of important differences between shared parental leave and adoption leave. The EAT was influenced by the fact that shared parental leave cannot begin until after the birth of the child, whereas adoption leave can begin before the child is placed for adoption; that entitlement to shared parental leave is contingent on the birth mother’s consent, whereas entitlement to adoption leave is an independent right; and that shared parental leave may be taken in short and dispersed blocks of leave, but adoption leave can only be taken as one period of leave. Choice also appeared a critical factor in the EAT’s decision making, with shared parental leave being distinguished as entirely optional. 

In the EAT’s view, the primary purpose of adoption leave is to ensure the welfare of the adopted child, which goes “far beyond the provision of childcare” and includes “the forming of a parental bond, becoming a family, and the taking of steps to prepare and maintain an appropriate and safe environment for the adopted child”. The EAT noted that, “given that adoption can take place when a child is older and more independent than an infant, the challenges in terms of forming such a bond and of ensuring the child’s acceptance of the new environment in the adopter’s home, may be very different and potentially more difficult.”

Possibility of future reform of shared parental leave

The outcome of this case will likely disappoint campaigners seeking greater gender equality in the workplace and strengthen calls for legislative reform of the statutory shared parental leave scheme, which has significantly low levels of uptake in the UK. It may be that the Courts bring about legal change in this area and not Parliament. Although case law has, to date, identified that childcare is not the predominant purpose of maternity and adoption leave, there is scope for a future decision identifying that, after a certain period of leave, the predominant purpose shifts to that of childcare, paving the way for comparisons with men taking shared parental leave.

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