Shared Parental Leave Scheme: where does this leave us now?

Four years ago the coalition government, to much fanfare, introduced the Shared Parental Leave Scheme (“SPL”) and billed it as a “game changer” for parents. The aim was to not only increase workplace equality by giving parents the ability to share the caring responsibilities, but also to give women the ability to go back to work earlier.

However in light of the concerns raised by the TUC in April 2019, namely that just 1% of new parents in 2017 / 2018 took up SPL, and the decision in Ali v Capita Customer Management Limited and Chief Constable of Leicestershire Police v Hextall in the Court of Appeal last month with regard to challenges to the difference in pay between SPL and maternity leave; it could well be said it is game over as parents are simply not taking up the option of SPL.

So where lies the impasse?  Put simply: pay, or financial ability. The TUC confirms that £148.68 per week, the current statutory sum for parents undertaking SPL where an employer does not offer an enhanced rate, is simply not enough for parents to meet the cost of their bills and outgoings.

This was highlighted by Mr Ali whose wife suffered from postnatal depression and he subsequently became the primary carer. In order to do this Mr Ali wanted to take SPL, albeit on the same rate of pay as a female employee’s rate of pay on maternity leave of 14 weeks’ full pay and not the rate of the statutory sum, as they could not afford to live on it as a family.

Whilst Mr Ali accepted that he could not be compared to a mother during the first two weeks of compulsory maternity leave and could not be entitled to the same pay, he suggested that he was entitled to the same rate as his female colleagues for the next 12 weeks. This was on the basis that this period, whether classified as SPL or maternity leave, was for the care of the child and there should not have been a difference in pay based on sex.

Capita did not agree, offering Mr Ali the statutory sums, and ultimately the Court of Appeal sided with them on the basis that the purpose of maternity leave is “the health and wellbeing of the pregnant and birth mother” whereas the purpose of SPL was “the care of the child“. On this basis there was no direct sex discrimination due to the difference in pay. Mr Ali received the same sums of money as a woman on SPL, and a woman on maternity leave was not comparable due to the differences in purpose of SPL and maternity leave, and he was not being treated less favourably by being paid the statutory sum.

Does this mean that SPL is the issue? Mr Hextall, in the claim joined with Mr Ali’s claim, was of this view and argued that “paying only the statutory rate of pay for those taking a period of SPL” placed men at a disadvantage compared to women, and men were less likely to take it, amounting to indirect sex discrimination. This claim also failed legally because the court held that Mr Hextall’s claim was in fact an equal pay claim, and the implied “sex equality clause” does not apply to special treatment in connection with pregnancy or childbirth. The court considered that in any event an indirect discrimination claim would have failed on the same basis as Mr Ali, but appropriately highlighted the real issue – men are disadvantaged compared to women not through SPL, but because men can never receive enhanced maternity pay as they cannot bear children.

It is hard to see, in light of the statistics and the judgment of the Court of Appeal, that families will be “sharing the joy”, as the Government puts it, anytime soon. The position could be compounded further if you consider that a family adopting a child may well face the same issues as Mr Ali if an enhanced scheme is offered. However there remains some hope:

• Aviva UK now offers parity for males with the same level of pay for SPL as maternity leave. The result? 67% of eligible fathers took 6 months off work and the effect on their business is being noted. Diageo have also confirmed they will offer 26 weeks of full pay to fathers;
• the TUC are pushing, in light of their findings, for an accessible right for all families whereby they can access these rights from day one with financial support for all families; and
• the Court of Appeal judgment may not be the end of the matter as Mr Ali and Mr Hextall are appealing to the Supreme Court.

Special care must be taken when introducing such schemes to avoid inadvertent discrimination of any kind, but if we are ever to address the Gender Pay Gap (with 8 out of 10 companies paying men more than women), in the absence of government intervention or assistance, fundamental changes to our working practices need to happen.

This article was written for Reward Strategy Magazine, published on 4 July.