Sex discrimination: shared parental leave v adoption leave
Wednesday 21st April 2021
A man on shared parental leave could not claim sex discrimination for being paid less than a woman on adoption leave, held the Employment Appeal Tribunal in Price v Powys County Council.
The claimant was an employee of Powys County Council. Once the claimant’s wife’s compulsory maternity leave had ended, the claimant began to take shared parental leave. The claimant received pay equal to statutory maternity pay, as per the Council’s policy. A female colleague of the claimant’s was also on adoption leave at the same time and was being paid full pay, as per the Council’s policy. The claimant thus compared himself to his female colleague and alleged direct sex discrimination on the basis he was being paid less than his female colleague.
The tribunal dismissed this claim on the basis that the comparator was wrong – the claimant would have needed to use the comparator of a woman also on shared parental leave. Furthermore, the tribunal listed several differences between employees on shared parental leave and adoption leave. The main reasoning for adoption leave differing to shared parental leave is the fact that its purposes go further than that of simply providing childcare. Adoption leave includes matters such as the forming of a parental bond, becoming a family, and taking steps to prepare and maintain an appropriate environment for the adopted child. The claim thus failed because it did not meet the requirement of s23 of the Equality Act 2010 which states there must be no material difference in circumstances between the claimant and his comparator which in this case, there was. A woman on shared parental leave would have been paid the same as the claimant and therefore his sex discrimination claim failed.
Employers do not necessarily need to harmonise their maternity/paternity/adoption/shared parental leave policies for the purposes of avoiding sex discrimination claims. However, employers should still be careful to ensure that differences in family friendly policies are not indirectly discriminatory.
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