Shared Parental Leave - Snell v Network Rail Infrastructure Limited
This is the first Employment Tribunal decision on Shared Parental Leave since it was first introduced in April 2015.
When Shared Parental Leave was first introduced, questions arose as to whether employers that provided enhanced maternity pay, but not enhanced shared parental pay, would be opening themselves up to the risk of discrimination claims made by male employees.
Mr Snell is an employee of Network Rail. He and his wife, who is also a Network Rail employee, informed their employer that they intended to take shared parental leave for their child. Under Network Rail's family-friendly policy, partners and secondary adopters were entitled to up to 39 weeks' shared parental pay paid at the rate of statutory shared parental pay and a further 13 weeks' unpaid leave. However, mothers and primary adopters were entitled to up to 26 weeks' shared parental pay paid at full pay, a further 13 weeks' paid at the rate of statutory shared parental pay and further 13 weeks' unpaid leave.
Mr Snell raised a grievance arguing that Network Rail's approach to shared parental leave was discriminatory on the ground of sex, as his pay entitlement was considerably less than his wife’s entitlement.
Network Rail rejected Mr Snell’s grievance on the grounds that there had not been any sex discrimination, as for there to be, the company would need to pay women a different rate to men, and that it was entitled to give a different status to the mother and partner. Network Rail stated that Mr Snell's comparator would be "a woman sharing parental leave, not the mother" and that it is up to them to decide how their enhanced shared parental pay works.
Mr Snell lodged claims in the Scottish Employment Tribunal for direct and indirect sex discrimination. Mr Snell's claim highlighted Network Rail's choice of comparator, suggesting that there is no material difference between a father taking shared parental leave and mother taking shared parental leave.
Network Rail amended its shared parental leave policy later in the year so that both the mother and the partner receive only statutory shared parental pay.
By the time of the Employment Tribunal Hearing, Network Rail no longer contested the claim, leaving the tribunal to focus on remedy. With the agreement of the parties, the Employment Tribunal made a declaration that Mr Snell was indirectly discriminated against in relation to his sex by the application of his employer's family-friendly policy, which put him at a particular disadvantage during shared parental leave as a man, when compared to a woman.
The Employment Tribunal highlighted the principle that tribunals should avoid making recommendations as to the payment of wages, and considered an award of compensation to be sufficient in this case. The employment tribunal awarded Mr Snell a sum of £28,321.
As this is only a first-instance decision, it is therefore not binding. Despite this, it is the first case on shared parental leave. Therefore, it is suggested that employers review their shared parental leave policy in case they are differentiating between the mother and partner in the provision of enhanced shared parental pay.
Although, the issue of whether or not it is discriminatory for employers to enhance maternity pay but not shared parental pay, remains untested in the courts and tribunals.
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