Sex discrimination and shared parental leave
In Price v Powys County Council, the employment appeal tribunal (EAT) held that a man on shared parental leave (ShPL) being paid less than a woman on adoption leave was not sex discrimination.
When Mr Price and his wife found out that they were having their first child, they decided that Mr Price would stay at home to care for the baby and that his wife would return to work. When Mr Price asked his employer about the amount of pay he would be entitled to, he was told that it would be an amount equivalent to statutory maternity pay. According to his employer’s policy, any employees taking adoption leave, though, would be entitled to enhanced pay. Mr Price did not proceed with his application for ShPL.
Mr Price brought a claim of direct sex discrimination to the employment tribunal (ET), using two possible comparators:
- A female employee on maternity leave who was receiving maternity pay.
- A female employee on adoption leave receiving adoption pay.
The ET dismissed the claim and concluded that the positions for both comparators were not materially the same.
Mr Price appealed, claiming that it was discriminatory for a male employee on ShPL to be paid less than a female comparator on adoption leave. Mr Price claimed that:
- The ET had failed to have regard to the underlying purpose of adoption leave, which is the same as or similar to that of ShPL, namely the facilitation of child care.
- The ET was wrong in considering that there was a material difference between Mr Price’s circumstances and those of his comparator.
The question the EAT had to consider in determining if the comparator was appropriate was whether there was any material difference between the circumstances of Mr Price and those of the comparator.
Regarding the underlying purposes of both forms of leave, the EAT concluded that, although the purpose of ShPL includes the facilitation of childcare, it is also about choice. The EAT also found that the purpose of adoption leave extends well beyond childcare alone.
Considering the matter of material differences, the EAT found that there were significant differences between ShPL and adoption leave, which include the fact that adoption leave is an immediate entitlement upon placement of a child, whereas ShPL is not. The EAT concluded that a more appropriate comparator to use would have been a female employee on ShPL. Such a comparator would receive the same pay under the employer’s ShPL policy as Mr Price and, as such, there would be no prima facie case of discriminatory treatment.
The case illustrates that there are material differences between ShPL and adoption leave. Therefore, employers wishing to offer enhanced adoption pay, while offering only the statutory entitlement for ShPL, will not result in a successful claim for sex discrimination.