Tag Archive: family friendly

Disparate pay for maternity and shared parental leave may be indirect discrimination

Following the EAT’s recent ruling, in Capita Customer Management Limited v Ali, that a father who wished to take shared parental leave was not directly discriminated against in not being entitled to the higher maternity pay rate which the employer paid to employees taking maternity leave, the EAT has handed down judgment in Hextall v Chief Constable of Leicestershire Police.  The appeal in this case related to indirect discrimination, and provides a useful contrast to the previous judgment on direct discrimination.

In Hextall, the Respondent Police Force’s maternity, paternity and shared parental leave policies were such that the only option for men taking leave after the birth of their child was shared parental leave at the statutory rate, while women had the additional option of taking maternity leave on full pay.  The Claimant brought both direct and indirect discrimination claims, which the Employment Tribunal dismissed, concluding that women on maternity leave were not valid comparators for men on shared parental leave in respect of either the direct or indirect discrimination claims.  The Claimant appealed the decision in relation to the indirect discrimination claim only.  In appealing this decision, the Claimant also clarified the nature of the indirect discrimination claim, namely that the rate of pay for shared parental leave being at the statutory rate while maternity pay was offered at an enhanced rate disadvantaged men because they, unlike women who could opt for maternity leave on enhanced pay, had no other choice than to accept statutory pay if they wished to take leave to care for their child.

On appeal, the EAT found that the ET had erred in the application of the appropriate test for indirect discrimination. While the ET had correctly identified the PCP relied on by the Claimant, the EAT found the ET had erred in identifying a logically relevant pool in order to undertake a comparative exercise to decide whether the PCP put men at a particular disadvantage compared with women in circumstances which were not materially different.  In particular, the ET had failed to identify the disadvantage relied on  by the Claimant.  This was that the difference in pay rate disadvantaged fathers because they, unlike mothers, would be deterred from taking leave.  On this basis, the EAT held that the relevant pool should have been comprised of men and women with a present or future interest in taking leave to care for their new-born child.  The ET had therefore been incorrect to exclude women on maternity leave from the relevant pool, which it had done on the same basis for its correct rejection of the same comparator in relation to the direct discrimination claim.

While the EAT allowed the appeal, they concluded that they did not have sufficient facts before them to accurately identify the relevant pool, and as such returned the case to a differently constituted ET for re-consideration. Hextall does not therefore provide a definitive answer to the question of whether disparate pay under maternity and shared parental leave policies will give rise to indirect discrimination.  The position should, however, become clearer after the ET issues its decision, which will necessarily incorporate the consideration of any objective justifications for the alleged indirect discrimination.  In light of the recent ruling in Ali, it will be informative to observe the extent to which the ET gives weight to the contrasting purposes of maternity leave and shared parental leave in the context of justifying any indirect discrimination.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/disparate-pay-for-maternity-and-shared-parental-leave-may-be-indirect-discrimination/

Milestone date for the UK’s working parents – 1 December 2014

In a significant move away from the tradition of birth-related leave being the preserve of a woman, from 1 December 2014, the UK’s new shared parental leave regime will, for the first time, allow parents to share up to 50 weeks’ leave. The new regulations apply to parents expecting a baby on or after 5 April 2015 as well as to adoptions and to employees who become parents through a surrogacy arrangement.

Sandra Wallace, the UK Employment Group Head, comments, “Today marks an exciting milestone in the development of family friendly employment rights in the UK. That excitement is, however, slightly tainted by the fact that the legislation enacting the new regime is extremely complex;   at the most recent count there were 22 sets of implementing regulations. The regime places onerous notification and other burdens on both employers and employees so, at first blush, the task of understanding and implementing shared parental leave may not seem straight forward. That said, if employers put  time into addressing the new requirements now and take some sensible preparatory steps, the new scheme is likely to run smoothly within their organisation. No-one is expecting an immediate rush of requests and it is anticipated that employee use of the new rights will gradually increase over the coming years. Our recommendation is that, as a starting point,  UK businesses should prepare by putting relevant policies in place (for example, a revised maternity policy and a shared parental leave and pay policy); by producing notification forms for their employees to use; and by producing guidance for managers on handling requests for shared parental leave. For further details see our previous post –  One month countdown to shared parental leave and our handy infographic.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/milestone-date-for-the-uks-working-parents-1-december-2014/

One month countdown to shared parental leave

Clare Gregory, a Partner in our Sheffield office comments: There has been increasing publicity recently about the new shared parental leave regime which will, from 1 December 2014,  for the first time, allow parents to share up to 50 weeks’ leave. This is one of the most radical of the Government’s recent employment law reforms and will undoubtedly have a significant impact on both employers and employees. It completely overhauls the existing system of maternity and paternity leave for those parents who wish to share leave with their partners.   Features of the new regime of particular note are that couples can take leave together or separately;   leave can be taken in a continuous block or in discontinuous blocks of one week at a time; and an employee can vary the leave dates they have requested up to a maximum of three times.

Most employers are already broadly aware that family-friendly rights are facing the biggest changes ever seen, however, many have yet to realise how soon they might feel the impact of the implementation of shared parental leave (SPL).  The majority of the new regulations will come into force on 1 December 2014 and will apply to parents expecting a baby on or after 5 April 2015.  This means that any eligible employees who have become pregnant since July 2014 or who become pregnant from now will fall under the new regime and be entitled to share up to 50 weeks’ leave.  There is therefore only a matter of weeks left to get systems in place. 

Employers should be taking steps to put in place appropriate policies and procedures so that they are able to inform employees about their rights and obligations. It will also be essential to train staff and managers on the new regime.  The legislation which has been published to date is complex and places onerous burdens on both employers and employees which means that understanding and implementing the new regime is not going to be straight forward. 

The top three areas we anticipate are likely to cause headaches for employers are:-

Enhanced pay

The new rights raise questions about how employers should deal with pay during shared parental leave, particularly where they offer a scheme of enhanced pay during maternity leave.  Addressing this appropriately will be key to maintaining good employee relations and ensuring that there is no discrimination.  However, the legal issues in this area are not straight forward and employers should therefore tread carefully in making any decisions.

There is the potential for direct discrimination in relation to pay if an employer offers an enhanced maternity pay scheme but does not mirror those provisions in a shared parental pay scheme.  Potentially a man on shared parental leave could seek to compare himself to a woman on maternity leave and argue that he is being treated less favourably because he is not entitled to enhanced pay.  This is a particular risk in light of the removal of the exclusivity of maternity leave for women – leave is now interchangeable after just 2 weeks which gives rise to the argument that a man taking SPL at any time after 2 weeks should be entitled to the same pay which a woman would receive if she was on maternity leave at the corresponding point in time.  There are also potential claims for indirect discrimination, for example if the shared parental pay policy disadvantages more men than women – which it may because women will have the choice as to whether to continue on an enhanced maternity scheme whereas men will not.

Discontinuous periods of leave

Under the new regime, employees will be permitted to request either a continuous period of leave or discontinuous periods of leave in blocks of a week at a time.  Where a request is made for a discontinuous block of leave,  the employer can either consent to the leave dates,  suggest alternative dates or refuse the request.   Employers should put in place rigorous systems for dealing with discontinuous leave requests as they are only given two weeks in which to consider/discuss the request with the employee.   Given this very short time period,  policies should specify exactly who such leave requests should be directed to in order to avoid the risk of a request languishing in a manager’s in-box and not reaching HR until the two week window has passed.  Further, any refusal of a request for discontinuous leave will have to be handled very carefully to avoid constructive dismissal claim and/or claims of discrimination where, for example, mens’ and womens’ requests are treated differently.

Communications between employers

There will there be no central co-ordination of how the 50 weeks’ leave is being shared between parents which has caused some employers to express concern that there is a risk of both parents taking time that amounts to over 50 weeks in total.

The Regulations which have been published do not provide for any communication between employers.  Instead, the provisions require each employee to comply with detailed notice and evidential obligations, in which they must provide information about, and include signed declarations from, the other employee. Each employee must also give the name and address of the other employee’s employer.  However, beyond this there are no provisions to facilitate communication between employers.    The notices to be given by each employee require them to tell their employer how much SPL is available and how much each parent intends to take.  As such, the system could be open to fraud but the Government considers that the system of notices and evidence proposed is sufficient to prevent/deter this.   

A suggested approach for employers is, as part of their implementation plan, to produce detailed notification forms for use by their employees which assist them to provide as much of the required information as possible.   Forms and policies should also make clear that the employer will rely on the provided  information;  that if any information is found to be untrue there is the risk of disciplinary action;  and also that the employer will share information with other employers if asked to do so.


Permanent link to this article: https://www.dlapiperbeaware.co.uk/one-month-countdown-to-shared-parental-leave/

Failure to enhance paternity pay not discriminatory

In Shuter v Ford Motor Company, an employment tribunal has held that a male employee was not discriminated against when he received only statutory pay during a period of additional paternity leave (APL) whereas a female employee on maternity leave would have received full pay for up to 52 weeks.   Although only a first instance decision which will not bind other tribunals, this case nonetheless serves as a useful reminder to employers that they need to decide an approach to the incoming system of shared parental leave (SPL) and, in particular, to address the thorny issue of whether the benefits of an enhanced maternity scheme should be mirrored for those on SPL.


Under Ford’s family leave policies,  employees on maternity leave are entitled to occupational maternity pay at the rate of 100% for the whole leave period and employees on the two weeks of ordinary paternity leave are also entitled to 100%.   APL was a new type of family leave which took effect in relation to children born after 3 April 2011;   where the mother returns to work and ends her maternity leave,  the child’s father or the mother’s spouse/civil partner can then take between two and 26 weeks’ APL.   At the time APL was introduced,  Ford reconsidered how it might structure its pay arrangements for family leave.   Its decision was the retain 100% maternity pay and two weeks’ full pay for ordinary paternity leave but to pay only statutory pay for APL.   Among the reasons for this decision were –

  • The APL regime was likely to be temporary as the Government was already consulting on the introduction of SPL;
  • It was usual practice to initially adopt statutory minimum entitlements and then refine entitlements based on experience;
  • Paying APL at 100% would be costly and disruptive to the business given the make-up of Ford’s workforce;
  • 100% maternity pay had been introduced to enhance Ford’s ability to recruit and retain more female employees and assist its diversity targets.  A downwards equalisation of pay for maternity and APL would demotivate female staff; negatively impact the reasons for implementing 100% maternity pay; and  risk litigation and negative publicity;
  • A recognition that APL and maternity leave are different as maternity leave is connected with the biological condition of pregnancy and childbirth and facilitates the special relationship between mother and child;
  • The Government’s advice was that pay for APL did not need to be enhanced to mirror maternity pay and similar employers were not doing so;
  • Ford did not want to subsidise the less generous maternity benefits of other employers;
  • The current 2% take up of ordinary paternity leave was low; and
  • Other European companies in the Ford group did not offer such generous rights.

Ford was also able to provide statistical evidence to the tribunal which demonstrated the need to increase the number of women in its workforce; that an increase had been achieved; and also statistics on the take up of maternity and paternity leave within its workforce.

ET Claim

Following his wife’s return to work after maternity leave,  between July and December 2013,  Mr Shuter took a period of about five months’ APL from his employment with Ford.   He was paid at the statutory rate.  In October 2013,  Mr Shuter issued employment tribunal proceedings alleging both direct and indirect discrimination based on the difference in treatment by Ford of women on maternity leave and men on APL.   Had Ford’s maternity and APL pay policies been the same,  he would have received around £18,000 during his period of leave.

The employment tribunal decided that Mr Shuter had not been subject to either direct or indirect sex discrimination.   

In terms of direct discrimination,  Mr Shuter had sought to compare himself to a woman on maternity leave but the tribunal held that this was not the correct comparator.  Instead, Mr Shuter should be compared to a woman on APL who would, similarly, have received only statutory pay and, as such, there was no less favourable treatment.

In terms of indirect discrimination,  it was accepted that Ford had applied a practice of “paying women basic pay when on leave beyond 20 weeks after the birth of the child when looking after the child”.  It was also accepted that men were likely to suffer a group disadvantage from this practice given that the largest group eligible for APL are fathers.   However, the tribunal decided that Ford’s practice of paying full pay during maternity leave was justified;  its legitimate aim was to retain and increase the number of women in its workforce and its policy on maternity pay was a proportionate means of achieving that aim.


This is one of the first cases where a difference in pay for women on maternity leave and men on APL has been considered.   It is helpful for employers that, in a well-reasoned judgment, the tribunal found that there was no discrimination.   However,  businesses should not take this as an opportunity to breath a collective sigh of relief.    The decision is only at employment tribunal level so is not a binding authority and it may yet be subject to appeal.   In addition,  the case related to APL which will soon become a thing of the past when SPL comes into effect (for babies expected on or after 5 April 2015).    There are significant differences between APL and SPL including that, for example,  SPL can be taken from two weeks after the birth, rather than 20 weeks as is the case with APL,  and also that a mother and father can take SPL concurrently,  rather than consecutively as is the case with APL.    As such,  it is possible that the courts may reach a different decision when asked to consider a discrimination claim based on differences between maternity pay and pay for SPL.   

What this case is very helpful in demonstrating is the sort of detailed evidence an employer will have to provide in order to justify a decision to enhance maternity pay but not pay for SPL.  Cost alone is not an adequate reason and some additional justification will be required.   Here, Ford had carefully considered the issue when APL was introduced,  had reviewed various options and had identified sound business reasons for the decision to continue to enhance maternity pay only.     This is an exercise which employers who currently enhance maternity benefits will need to carry out before the SPL regime comes into effect and, in this regard, there is no time like the present!


Permanent link to this article: https://www.dlapiperbeaware.co.uk/failure-to-enhance-paternity-pay-not-discriminatory/

December 2013’s review of the year

Sandra Wallace, Partner and Employment group head, highlights the most important legislative and case law developments from 2013 and identifies the key cases to watch out for in 2014.   Remember to use our On the horizon legislation tracker to keep up to date with the further changes to legislation which are expected in 2014 and beyond.



Employment Tribunals

1 February Cap on a week’s pay for statutory awards increased from £430 to £450
  Unfair dismissal compensatory award increased from £72,300 to £74,200
25 June In political affiliation cases the two year unfair dismissal qualifying period no longer applies
29 July One year cap on unfair dismissal compensatory award introduced
  Protection of settlement negotiations from admissibility in unfair dismissal tribunal proceedings introduced
  Introduction of fees regime for employment tribunal claims and new tribunal rules
  Compromise agreements renamed ‘settlement agreements’
7 October New fee remission system in force for employment tribunal fees

Family friendly

8 March Parental leave increased from 13 to 18 weeks
7  April Statutory maternity, paternity and adoption pay rates increased from £135.45 to £136.78 per week


25 June Amendments to whistleblowing legislation to remove good faith requirement and introduce public interest test
1 November

Close of call for evidence on further whistleblowing reform


1 February Cap on a week’s pay for statutory redundancy payments increased from £430 to £450
6 April Period of required collective consultation for 100+ redundancies reduced from 90 to 45 days

Employment status

1 September Employee shareholder status introduced


25 June Obligation for the Government to make an order outlawing caste discrimination came into force
1 October Repeal of third party harassment provisions from Equality Act 2010





USDAW and others v WW Realisation 1 Ltd and others This case involves the redundancy consultation obligations arising out of the closure of Woolworths and Ethel Austin stores between 2008 and 2010.   The EAT ruled that the words “at one establishment” in the UK’s collective redundancy legislation should be disregarded for the purposes of any collective redundancy involving 20 or more employees. This potentially results in employers needing to collectively consult whenever they propose to make 20 or more redundancies in a 90 day period, regardless of where the employees are based.  This case is however being appealed to the Court of Appeal.

Working time

Neal v Freightliner Ltd


An Employment Tribunal held that a freight worker was entitled to have overtime payments and shift premiums included in the calculation of his holiday pay as they were intrinsically linked to the performance of the tasks he was required to carry out under his employment contract.  This case is being appealed to the EAT.

Employee competition

Coppage and anor v Safety Net Security Ltd The Court of Appeal upheld an order that a former company director pay at least £50,000 following a breach of his post-termination restrictive covenants which prohibited solicitation of any customers of his former employer for a period of six months following termination.
Vestergaard Frandsen SA v Bestnet Europe Ltd The Supreme Court held that a former sales manager was not liable for misuse of confidential information.  The manager had not acquired information while working for Vestergaard and had no implied knowledge of the misuse of information by her new employer.

Transfer of undertakings

Alemo-Herron and others v Parkwood Leisure Ltd

Considering the status of collective agreements following a TUPE transfer, the ECJ decided that under the Acquired Rights Directive it is impermissible for UK courts to adopt a “dynamic” rather than a “static” interpretation.  Where transferring employees’ contracts provide that their terms are to be determined in accordance with collective agreements, the transferee cannot be bound by terms which are collectively agreed after the transfer if it is unable to be involved in the negotiating process.

Crystal Palace FC Ltd v Kavanagh & Ors

In a case which arose out of the dismissal of employees of the company which owned Crystal Palace football club when it went into administration, the Court of Appeal held that the employees were dismissed by the administrator shortly before the business was sold for a valid “economic, technical or organisational reason”. The administrators needed to reduce the wage bill in order to continue running the business and avoid liquidation.


Lockwood v Department of Work and Pensions

The Court of Appeal held that a severance scheme, which paid higher payments to older employees on the basis that they needed more of a cushion than younger employees, was objectively justified.

Cox v Essex County Fire and Rescue Service

In this disability discrimination case, the EAT decided that although the employee had advised that he was suffering from bipolar disorder, the absence of a definite diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.

Croft Vest Ltd & Ors v Butcher

The EAT held that an employer who refused to pay for an employee with work-related stress and depression to have private psychiatric counselling and cognitive behavioural therapy breached its duty to make reasonable adjustments.



USDAW v Ethel Austin Ltd (in administration) and another case


The Court of Appeal will consider whether the words “at one establishment” in the UK’s collective redundancy legislation should be disregarded for the purposes of any collective redundancy involving 20 or more employees. (NB. this is the Woolworths case  – see above for EAT decision).
Lyttle and others v Bluebird UK Bidco 2 Ltd In an application from a Northern Ireland employment tribunal to the ECJ, clarification is sought as to the meaning in the UK’s collective redundancy legislation of the term “establishment” and whether the duty to collectively consult is triggered when 20 or more employees are dismissed at a particular establishment or across the whole of the employer’s business.

Working time

Lock v British Gas Trading Limited and others The ECJ will consider whether the holiday pay of a worker, who receives basic pay and sales-related commission, should be more than just basic pay, even though during holiday periods they are not undertaking work that would entitle them to commission.
Neal v Freightliner Following the Employment Tribunal in 2013 (see above), the EAT will consider if holiday pay must be calculated in a way which takes account of pay for voluntary overtime.


Z v A Government Department & the Board of Management of a Community School;    CD v ST There are currently two cases before the ECJ which will consider whether an mother who has a child via a surrogacy arrangement has pregnancy and maternity rights under EU law.
FOA on behalf of Karsten Kaltoft v Billund Kommune The ECJ will consider whether discrimination on grounds of obesity is prohibited by EU discrimination law.

Gallop v Newport City Council


Judgment is awaited in this case in which the Court of Appeal has considered if an employer’s lack of knowledge prevents the duty to make reasonable adjustments arising where the employer relied on advice from an occupational health adviser that an employee was not disabled for discrimination purposes.

Mba v Mayor and Burgesses of the London Borough of Merton

Judgment is awaited in this case in which the Court of Appeal has considered whether or not an employer’s requirement that all care workers work some Sunday shifts indirectly discriminated against a Christian residential care worker who strongly believed that Sunday should be a day of rest.

Employment law reforms

R (on the application of UNISON) v Lord Chancellor


Judgment is awaited in this case in which the High Court heard an application by UNISON claiming that the introduction of employment tribunal fees is in breach of EU law and contrary to the principle of access to justice.    A similar application to the Scottish Court of Session has been stayed pending the outcome of the High Court case.

R (on the application of Compromise Agreements Ltd) v Secretary of State for Business, Innovation and Skills

An application has been made for judicial review of the statutory cap of one year’s salary in unfair dismissal cases. The application is based on the premise that older people are more likely to be out of work for more than a year and therefore would be eligible to more than a year’s compensation were it not for the new cap.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/december-2013s-review-of-the-year/