Indirect Discrimination and Shared Parental Leave (SPL)
Network Rail has recently slashed its maternity pay to female employees, why? The reason is that if an employer pays female employees enhanced maternity pay, but does not pay male employees enhanced pay when they take SPL, this practice is likely to be indirectly discriminatory.
In fact Network Rail has just been ordered to pay £28k compensation to one male employee for this very reason.
It’s one of a handful of anomalies that result from the introduction of SPL and that particularly affect schools who have burgundy book and green book incorporated terms.
I spotted this in 2014 when the SPL Regs were introduced and consulted with clients and the unions to canvass opinion. Only NASUWT responded substantively and they argued for the most beneficial outcome for female employees.
Respect to NASUWT for bothering to consider the issues we highlighted; SPL is headache inducing stuff and the SPL Regulations make the blueprints to the death star seem like instructions for a space hopper!
Problem 1 – indirect discrimination
There are three options, and – sorry about this – none of them are particularly attractive.
The expensive approach
Firstly, you can pay male employees enhanced pay when they are on SPL so there is no difference in treatment. Potentially this means allowing up to 18 weeks of enhanced pay to male employees and so could be very expensive (remember, under SPL female employees can share up to 37 weeks of their maternity pay).
The ballsy approach
Alternatively, you can amend your Family Friendly Policy to make it clear that no employees who are on SPL will be entitled to enhanced pay.
If you are going to do this you need to set out all substantial reasons for this as justification. This way, at least if you face a claim you will have a credible justification defence. It may not work, but you will have something to rely on. If this is your preferred approach you will need professional help when re-drafting your policy.
The Kaiser Chiefs* approach
Finally, you can withdraw female employee’s rights to enhanced pay. If these rights are contractual (e.g. collectively agreed and incorporated by the burgundy / green books) this will be almost impossible without provoking industrial action and risking constructive dismissal claims en masse.
Problem 2 – stop start rights to enhanced pay
The story doesn’t end here, enhanced pay during SPL gives rise to a further quandary:
If an employee opts to take SPL, does this mean that the right to enhanced pay can then be used on a ‘stop start’ basis like SPL rights? e.g. can the employee opt to be on SPL during term time with enhanced pay, and then ‘at work’ during school closure periods (receiving full pay)?
If so, enhanced maternity pay can be used in tandem with SPL to entitle each employee to an additional 10 weeks’ full pay during the 52 week SPL period. Ouch!
The cost to your organisation if this is correct is considerable and the possibility of ‘stop start’ rights to enhanced pay appear patently unreasonable.
The alternative is to create a rule that enhanced pay cannot be used on a stop start basis but must be used during the first 18 week period (i.e. the period in which female employees are entitled under the burgundy / green books to enhanced pay if they remain on maternity leave rather than taking SPL).
So, to avoid the ‘stop / start’ anomaly, all employees must only be allowed enhanced pay during the same limited period (under the burgundy / green books this will be the first 18 weeks only).
- Refuse to pay enhanced SPL to anyone and rely on your best justification arguments to limit the risk of indirect sex discrimination claims (and brace for impact), or
- Conflate your existing enhanced maternity pay rights with SPL to create a level playing field but avoid the cost of ‘stop / start’ rights to enhanced pay.
If you need help with SPL generally (or know someone who does) we can help.
For details of our SPL system follow this link.
* see the Kaiser Chiefs’ popular song “I predict a riot’