The Latest from Cloisters
Shared parental rights and discrimination
The new shared parental leave and pay rights are now in force and employers will be taking steps to introduce policies to comply.
Cloisters employment law barristers, Sian McKinley and Robin Allen QC, explain how employers will have to rethink their approaches to maternity and parental leave to avoid claims of sex discrimination.
The Shared Parental Leave Regulations 2014 and the Shared Parental Pay Regulations 2014 came into force on 1 December 2014, heralding a radical shake-up of the law. The purpose of the Regulations is to enable eligible mothers and fathers to share time off work after their child is born or placed with an adoptive family. Parents who meet the eligibility criteria will be able to use these new rights for children due to be born or placed for adoption on or aft er 5 April 2015.
The traditional system will remain:
■ A woman who qualifi es for statutory maternity leave and pay will be entitled to a maximum of 52 weeks’ leave and 39 weeks’ pay.
■ A man who qualifi es for statutory paternity leave will be entitled to two weeks’ leave with pay.
However, the Regulations also provide that part of the period of leave that would have been statutory maternity leave (SML) can be shared between the mother and the other parent as shared parental leave (SPL). Parents who are eligible will be able to share a pot of leave, and can decide to be off work at the same time and/or take it in turns to have periods of leave to look after the child.
The Regulations are not based on an underlying assumption that the mother is the primary care-giver, as the father’s right to SPL is not dependent on any right of the mother to SML. Fathers (or partners) who are employees with the requisite service can be entitled to SPL even if the mother has no entitlement to SML. The only requirement is that the mother is entitled to maternity allowance (MA).
Commonly, self-employed women and women who are currently unemployed receive MA, as the eligibility criteria require only that the mother has been employed or self-employed for at least 26 weeks in the 66 weeks before the week the baby is due and earned at least £30 a week over any 13-week period.
The father can take the notional 52 weeks’ leave (less the weeks that are paid as maternity allowance) as SPL and get the unpaid balance of weeks of MA as statutory parental pay.
Combating gender inequality
The purpose of the Regulations is to combat discrimination against women in the workforce.
First, there will no longer be an incentive to treat women less favourably during recruitment because of the risk that they will be absent from work to care for a baby, as men are also entitled to be absent from work.
Second, the connection between giving birth and the right to leave to care for that child has been disentangled, thereby eliminating “the motherhood penalty”.
Studies have shown that, relative to other kinds of applicants, mothers are rated as less competent, less committed and deserving of lower salaries. Mothers are also held to higher performance and punctuality standards.1 By comparison, while mothers are perceived to be distracted, fathers are perceived to be committed. Long term, this leads to lower pay and lower career progression.
This “motherhood penalty” is perpetuated by the assumption that mothers who give birth to children are the primary care-givers of those children. The assumption is challenged if the father or other parent has a freestanding right and does not require the mother to transfer any right to leave.
Enhanced maternity pay
It is not uncommon for an employer to have a generous enhanced maternity or adoption pay policy over and above the statutory regime. The Government has assured employers that enhanced pay will not need to be offered to men who are taking SPL. In our view, this is incorrect.
A useful example of a possible claim is provided by the first instance decision of Shuter v Ford  EqLR 717. Mr Shuter took a period of additional paternity leave (APL) for nearly five months to care for his baby after his wife returned to work.
Mr Shuter received the remaining statutory entitlement to statutory maternity pay (SMP) to which his wife would have been entitled. He did not receive the more generous package of full pay to which female employees of Ford on maternity leave were entitled. Mr Shuter argued that this amounted to sex discrimination and that the correct comparator was a woman on SML, as opposed to a woman taking APL.
The employment tribunal concluded that:
■ A woman on maternity leave could be the correct comparator if Parliament had “detached” maternity leave from that which is necessary to protect health and safety arising from the biological condition of pregnancy.
■ Parliament had not taken this step because a father’s right to APL was not a freestanding one but was dependent on the mother choosing to end her maternity leave and returning to work.
■ Mr Shuter’s circumstances differed to a woman taking maternity leave because she had been pregnant, given birth and cared for the child since birth.
■ The correct comparator in the same material circumstances as Mr Shuter, as required by s.23 Equality Act 2010, was a woman taking APL, for example, a civil partner.
Applying the tribunal’s reasoning, the Regulations have now changed the position so that leave (whether SML or SPL) has been detached from the biological condition of pregnancy and childbirth:
■ A father’s right to SPL is no longer a derived right to be transferred from the mother. The Regulations ring-fence the fi rst two weeks for the mother but thereaft er the father or other partner of the working mother has the same right to leave as the working mother, and a greater right than some non-working mothers.
■ There is no obligation on a mother to end her maternity leave and return to work before a father can take up SPL; although a mother must curtail her payments (either of SMP or MA) this is no more than a rule that only one parent may receive payment for the period of leave.
Moreover, the right to maternity leave and pay will be extended to mothers who have babies through surrogacy under provisions contained in the Children and Families Act 2014. Th is Act received Royal Assent on 13 March 2014 and the Government has stated this will take eff ect from April 2015.
The trigger for a right to leave to care for a newborn child is no longer giving birth, but parental responsibility. As the fact of being pregnant and giving birth is no longer relevant to the right to leave, it cannot be a material circumstance that diff erentiates a father (or other parent) and a mother. The correct comparator for a man taking SPL is a woman taking leave in order to deal with maternity (ie the fact of pregnancy and birth are set to one side). The simplest example of this would be the treatment of a mother taking leave for a baby for whom she has become responsible as a result of a surrogacy.
Further, we do not consider that s.13(6) Equality Act 2010 can be relied upon by employers to argue that enhanced maternity pay only is lawful. Th at provision entitles employers to treat women more favourably than men if the treatment is in connection with pregnancy or childbirth.
In the UK, the derogation was considered by the EAT in Eversheds Legal Services Ltd v De Belin  IRLR 448 (EOR 212). The EAT held that it was necessary to read the words “special treatment aff orded to women in connection with pregnancy and childbirth” as referring to proportionate measures which achieve the legitimate aim of compensating a woman for the disadvantages occasioned by her pregnancy or her maternity leave. However, if there is no longer a necessary link between childbirth and extensive periods of leave, De Belin must not apply; the derogation in s.13(6) no longer gives special protection to women who take maternity leave, at least beyond a period required to recover from the birth (this would not have assisted Mr De Belin – if taking leave is no longer gender-specifi c, then discrimination by reference to leave is not sex discrimination).
Furthermore, enhanced maternity pay could conceivably be paid by an employer to a woman who obtained a child through surrogacy but not to a woman who has given birth but has opted for SPL. Pay and leave are intrinsically linked. Once the right to enhanced pay is divorced from the act of giving birth, enhanced pay which is not off ered to a mother or father or other partner on SPL cannot be described as special treatment in connection with pregnancy or childbirth.
This is consistent with the position within Europe. According to European law, upon which this derogation is derived, the purpose of the measure is to protect the mother’s health and safety during pregnancy and in the period following childbirth within the meaning of the Pregnant Workers Directive, or to protect the “special relationship” between mother and child in the period following childbirth, then it is likely to fall within the scope of the derogation.2
However, once the national legislation has divorced the fact of childbirth from the right to leave, thereaft er the derogation is to be read narrowly and the member state is required to be consistent in its treatment of men and women. For example, in Roca Álvarez v Sesa Start España ETT SA  EqLR 238, the CJEU considered it significant that feeding and devoting time to the child can be carried out just as well by the father as by the mother. Leave is not dependent on a biological condition (in this case breastfeeding) but was accorded to workers in their capacity as parents of the child. It could therefore not fall within the derogation. In any event, even if the derogation did apply, it must be a proportionate means of achieving the legitimate aim of compensating the woman for the disadvantages occasioned by her pregnancy or her maternity leave according to De Belin. An employer would have to show that it was proportionate to give enhanced pay to women on SML but not to men (or women) on SPL. We consider, therefore, it is unlikely that an employer would be able to justify a diff erence in treatment, although it would inevitably be highly fact-specifi c.
Finally, there may be some worry that the obligation to treat men and women taking leave the same will cause a “race to the bottom” in terms of rights for women during maternity leave. Our view is that oft en this will not be possible:
■ In respect of special treatment while on maternity leave, s.18 of the Equality Act 2010 prohibits unfavourable treatment because of pregnancy or maternity leave. Employers still have an obligation to ensure a mother does not suff er a disadvantage as a result of being pregnant or on maternity leave, for example during a redundancy selection process.
■ In respect of enhanced maternity pay, employers will also have to consider that maternity and paternity policies may be contractual.
The effect of the Regulations may well be wider than anticipated, and could result in unintended consequences in relation to enhanced maternity rights and the risk of sex discrimination claims. Employers should bear this in mind when reviewing their maternity, paternity and parental policies.
It is interesting to note that, on 22 October 2014, the Coalition Government announced that all civil service employees will be entitled to full parental pay from April 2015 (EOR 253). Some large private sector employers have made a similar change. Readers may remember that the Government abolished default retirement at 65 in the civil service before it abolished it for the nation. Perhaps this heralds that further changes are on the way.
1. “Getting a job: Is there a motherhood penalty?”, Dr Shelley J Correll and Dr Stephen Bernard, March 2007, American Journal of Sociology (http://gender.%20stanford.edu/sites/default/fi%20les/motherhoodpenalty_0.pdf).
2. See, in particular, Hofmann v Barmer Ersatzkasse (C-184/83)  ECR 3047;  1 CMLR 242 at ; Kiiski  1 CMLR 5 at ; and Betriu Montull v INSS  EqLR 1078 at .
Robin Allen QC is Head of Cloisters and specialises in employment, equality, discrimination and human rights, public law and local authority work. Sian McKinley is also a member of Cloisters Chambers and specialises in employment, equality and discrimination.
This article was first published in the Equal Opportunities Review 254 (Jan 2015)