Tag Archive: shared parental leave

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/

Final employment law changes for this Parliament

Vinita Arora, a Partner in our London office, comments: On Monday 30 March 2015, Parliament dissolved and the period of pre-election purdah began, meaning that the government will be unable to make decisions or announce policies if they are likely to have significant effects or be politically contentious in the run-up to the election on 7 May. However, there is still time for one more round of employment law changes to take effect in April 2015:

Shared parental leave

The new system of shared parental leave will be available to parents of children due to be born or placed for adoption with them on or after 5 April 2015.

Adoption leave

With effect from 5 April, the requirement for 26 weeks’ service before employees become entitled to adoption leave is removed, and a new right is introduced for both single and joint adopters to attend adoption appointments together with protection against suffering a detriment or being dismissed in relation to exercising that right. Adoption leave rights are also extended to employees fostering a child under the “Fostering for Adoption” scheme.

Unpaid parental leave

Also with effect from 5 April, the current system of unpaid parental leave is extended to parents of children up to age 18 (currently only parents of children up to the age of five can take the leave).

Tribunal recommendations

On 6 April, employment tribunal powers to make wider recommendations in discrimination cases are removed.

National minimum wage consolidation

On 6 April, Regulations come into effect which consolidate the national minimum wage legislation.

These measures will bring to an end a five year period of significant change in employment law. What happens next depends on the outcome of the election but judging by the announcements already made by some of the main political parties, we can expect to see legislative proposals in relation to zero hours contracts, apprenticeships, equal pay and the national minimum wage. We will report on any developments as they happen on our On the horizon legislation tracker (pdf) which provides up-to-date information on key employment law changes and instant access to relevant legislation, including draft Bills.


Permanent link to this article: https://www.dlapiperbeaware.co.uk/final-employment-law-changes-for-this-parliament-2/

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/

Shared parental leave: draft regulations published

Vinita Arora, a partner in our London office, comments: the Government has published draft regulations which will implement a new system of shared parental leave to supplement the current maternity, adoption and paternity leave schemes with effect from April 2015. The shared parental leave scheme will be extremely complex. Employers will need to put new policies in place well in advance of the implementation date.

There are three sets of regulations, the Shared Parental Leave Regulations 2014 (Leave Regulations), the Statutory Shared Parental Pay (General) Regulations 2014 (Pay Regulations) and the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 (Curtailment Regulations).

In respect of babies with an expected week of childbirth (EWC) beginning on or after 5 April 2015, parents will be able to choose what type of leave to take. Mothers will still be entitled to 52 weeks maternity leave and fathers will still be entitled to two weeks’ ordinary paternity leave. However, if both parents fulfil the eligibility criteria, the parents will be able to give notice to opt to cut short statutory maternity leave and instead take shared parental leave.  Eligible employees will be entitled to a maximum of 52 weeks’ leave and 39 weeks’ statutory pay upon the birth or adoption of a child, which can be shared between the parents either concurrently or separately.

In order to qualify for shared parental leave, the mother must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the father’s)
  • have curtailed her statutory maternity leave
  • comply with the notice requirements

In addition, the father must have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC and have average weekly earnings above the lower earnings limit.

In order for the father to take shared parental leave, he must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the mother’s)
  • comply with the notice requirements

The mother must also have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC, have average weekly earnings above the lower earnings limit and have curtailed her statutory maternity leave.

When the mother is on maternity leave, neither parent can take shared parental leave unless the maternity leave is brought to an end early. The Curtailment Regulations set out how leave can be brought to an end by giving at least 8 weeks’ notice in a “leave curtailment notice”. They also set out the circumstances in which a leave curtailment notice can be withdrawn or revoked. Notice can be given before the birth of the child to enable both parents to take shared parental leave immediately after the birth.

Shared parental leave must be taken in blocks of at least a week but can be taken discontinuously. Where the employee requests discontinuous periods of shared parental leave the employer can agree to it, propose alternative dates or refuse the request altogether, in which case the employee will be entitled to one continuous period of leave. Alternatively he or she may withdraw the notice (presumably so that their spouse or partner may take the leave instead). All leave must be taken within 52 weeks of the child’s birth.

The draft rules as to notification are complicated. The employee may be required to give a number of different written notices to the employer particularly if plans regarding leave change.

The Leave Regulations also set out provisions on terms and conditions during leave, the right to return to work, rights on redundancy, and protection from detriment and dismissal, all of which are very similar to the current provisions on maternity, adoption and paternity leave. KIT days will be increased to a maximum of 20 per employee (including any KIT days already taken during maternity leave).

The provisions also apply to adoptive parents where the child is matched or placed for adoption on or after 5 April 2015.

The Pay Regulations set out the eligibility conditions for either parent to claim shared parental pay (SSPP) on the birth or adoption of a child, and the notifications that must be given to the employer in order to qualify. The pay regime is similar to statutory maternity pay, although inherently more complex due to the nature of shared parental leave.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/shared-parental-leave-draft-regulations-published/