No, according to the specific facts discussed in the recent Employment Tribunal case of Shuter -v- Ford Motor Company. In this case Mr Shuter claimed that he should be entitled to the generous 12 months full pay which is provided to female employees at Ford who take maternity leave.
Mr Shuter took Additional Paternity Leave (“APL”) 20 weeks after the birth of his child for around five months. During this time Mr Shuter received additional statutory paternity pay (“ASPP”) which is in line with the statutory maternity pay rate of £138.18 per week or 90% of average earnings (whichever is the lower). When compared with the enhanced maternity package that a female employee was eligible to receive, Mr Shuter estimated that he had suffered a loss of around £18,000.
Mr Shuter compared himself to an employee on maternity leave and claimed that he had suffered both direct and indirect sex discrimination. The Tribunal decided that he could not compare himself with an employee on maternity leave as their circumstances were not materially similar. The appropriate comparator is a secondary parent taking additional parental leave who could be either male or female. Mr Shuter could not show that he had been treated less favourably because of his sex.
The Tribunal then went on to consider indirect sex discrimination, and Ford accepted that men, as a group, were disadvantaged by the maternity policy. As such Ford had to justify its practice of paying women enhanced maternity pay. The “provision, criterion or practice” relied upon by Ford was the aim of promoting recruitment, retention and development of women within “a male dominated workforce.” Ford produced detailed statistics to back up their position which were accepted by the Tribunal. Further, Ford maintained that paying full pay whilst a male employee was on APL was “unsustainable” due to the large number of eligible fathers in comparison to the small number of female employees.
This is a topical case as keen readers of our updates will know that the Shared Parental Leave (“SPL”) Regulations are due to come in on 1 December 2014 and will apply to babies born or adopted from 5 April 2015. We considered in August whether employers would need to consider enhanced provision for shared parental leave.
This judgement is helpful for employers who do not provide enhanced pay for parents taking APL (but do provide enhanced maternity benefits) and who plan to do so the same with SPL.
However, the case comes with a health warning: employers need to be aware of the potential for an indirect sex discrimination argument if it chooses to provide a more valuable maternity package than a shared parental leave scheme. In this case Ford was able to defend its practice by showing that it had a legitimate and proportionate aim which was directly referable to the particular workforce. It should be borne in mind that cost savings alone will rarely ever justify indirect discrimination claims. Employers will need to demonstrate the objective behind any enhanced scheme for a particular group of employees as well as the effectiveness of the scheme in meeting the objective.
If you offer an enhanced maternity leave scheme but are not proposing to offer enhanced SPL you should consider whether this is capable of being justified in light of the approach in this case. Please get in touch with a member of the Employment team for further advice.