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Can Men on Shared Parental Leave Be Paid Less Than Women on Statutory Adoption Leave?

on Friday, 16 April 2021.

The Employment Appeal Tribunal (EAT) has considered whether it was discriminatory for an employer to provide enhanced adoption pay to a woman on statutory adoption leave (SAL) but no enhanced shared parental pay to a man on shared parental leave (SPL).

Price v Powys County Council

Mr Price was employed by Powys County Council and brought a claim for direct sex discrimination against the Council on the basis that they paid employees on statutory maternity leave (SML) and SAL more than employees on SPL.

Following the reasoning in the previous case of Ali v Capita, the Employment Tribunal (ET) found that there were material differences between Mr Price and his chosen comparators: a woman on SML and a woman on SAL. The ET held that the correct comparator in this case was a female employee on SPL. As a female employee on SPL would have received the same pay as Mr Price under Powys County Council's policy, there was no direct sex discrimination.

Mr Price appealed to the EAT in relation to the ET's rejection of his second comparator - a woman on SAL.

However, the EAT upheld the ET's decision that a woman on SAL was not an appropriate comparator in this case. The EAT found that the purposes of SAL and SPL differed. Whereas the predominant purpose of SPL was the facilitation of childcare, the purpose of SAL went beyond childcare alone to include the forming of a parental bond and the taking of steps to prepare and maintain a safe environment for the child.

The EAT upheld the ET's finding that there were material differences between SPL and SAL, including that SAL can commence prior to the child's placement, whereas SPL cannot. This further supported the ET's conclusion that a woman on SAL was not an appropriate comparator for Mr Price.

What Does This Decision Mean for Employers?

This case provides helpful clarification for employers wishing to offer an enhanced adoption pay policy whilst offering statutory entitlements for SPL that such policies will not give rise to a successful sex discrimination claim.

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Our employment lawyers are able to review your family-friendly policies and to provide expert advice. Please contact Ellie Boyd in our Employment Law team on 07393 148143, or complete the form below.

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