An Employment Tribunal in Scotland has found against an employer who paid mothers and fathers different rates when on shared parental leave.

In the case, a married couple were employed by the same company. They decided to share care responsibilities by taking shared parental leave. They requested that the mother of the child take 27 weeks of leave and the father take the subsequent 12 weeks.

The company’s family friendly policy established that the father was entitled to statutory pay and the mother had the right to enhanced pay during shared parental leave.

The father submitted a grievance to his manager, arguing that the rate received by a mother is significantly different to the rate paid to fathers. He argued that he was being discriminated against on the basis of his sex.

His manager did not uphold the grievance, arguing that the company was meeting its legal obligations.

The employee appealed, but this was also rejected.

Indirect Discrimination

He subsequently decided to lodge a complaint to the Employment Tribunal. During proceedings, the company decided to not contest the indirect discrimination claim and the employee decided not to proceed with a claim of direct discrimination. Therefore, the tribunal orally declared that the employee had been indirectly discriminated against due to his sex and awarded the employee £28,321.

The company has amended its policy so that both mothers and their partners receive statutory pay.

What can we learn from this case?

This is a decision by an Employment Tribunal, not an Employment Appeal Tribunal. As such, the decision is not binding on other tribunals.

It is also a shame that the issues were not fully debated before the tribunal. Since Shared Parental Leave was introduced, employers have been asking whether they must pay enhanced shared parental pay if they offer enhanced maternity pay. We are still waiting for a decision by an Employment Tribunal on the matter.

Nevertheless, it is an interesting case which highlights the risks of discrimination in company policies. Contact Ellis Whittam for advice on your family-friendly policies.

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