Shared Parental leave was introduced in April 2015 with the goal of helping families split the 50 remaining weeks of leave and 37 remaining weeks of pay after having a new baby.  The legislation was not straightforward and there were predictions of nightmares for employers trying to comply with the new Shared Parental Leave rules.

In practice, take up of the leave has been extremely low, with estimates from the Department for Business as low as 2% of the eligible 285,000 births each year.  This is partly due to the financial impact if the man is the higher earner and may also be due to social pressures.

The statutory rate of shared parental pay is the same as that of statutory maternity pay.  Many employers choose to enhance the rate of maternity pay above the statutory level, but if they take that route, do they have to do the same to shared parental pay?  In a recent appeal case, the EAT decided that the answer to that is no.

In the case of Capita vs Ali, Mr Ali claimed that it was direct sex discrimination that his employer paid more to mothers on maternity leave than fathers on shared parental leave.  The initial Employment Tribunal agreed, deciding that the primary purpose of both types of leave is childcare.

What’s the difference between Maternity Leave and Shared Parental Leave?

The Employment Appeal Tribunal overturned this, concluding that maternity and shared parental leave are taken for different reasons:

  • the primary purpose of maternity leave is to protect the mother’s health and wellbeing during pregnancy and after childbirth. Childcare is a consequence of maternity leave but not the primary purpose; and
  • the primary purpose of shared parental leave is to care for the child and it is given on equal terms to men and women

Because of the different purposes, it is acceptable to pay more for maternity leave than shared parental leave.  It wouldn’t of course be acceptable to pay one sex more than the other for shared parental leave.

For friendly straightforward advice

If you have an employee who expresses in interest in taking shared parental leave then we recommend speaking to your usual Backhouse advisor to guide you through the somewhat complicated eligibility calculations.

The Backhouse Solicitors Team

Tel: 01245 893400
Visit: 17 Duke Street, Chelmsford, Essex CM1 1JU

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