You consider yourself forward thinking in the running of your business. You operate an enhanced maternity pay scheme – mothers who take maternity leave get paid at full pay for a few months, instead of being paid at 90% of their earnings for six weeks and then at the prescribed rate, which is currently £139.58.

Then a male employee announces his good news – he’s having a baby! And he wants to play a big part in the baby’s upbringing; so he wants to share the mother’s leave. That’s fine – you know it has to be fine: shared parental leave is now the law.

But, and this is the sticking point, this employee wants to be paid the same as mothers taking maternity leave, even though you pay more maternity pay than required by law. He asserts that’s his right.

Is he right? The shared leave regulations don’t cover this situation. They merely state that shared parental leave must be paid at the prescribed rate.

His argument is not that your system is contrary to the shared parental pay regulations, but that it's discriminatory. This question has now made its way to an employment tribunal, in a case brought by David Snell against Network Rail. Network Rail also employed his wife, and whilst on shared parental leave she was to receive full pay for six months. Mr Snell, on the other hand, was told he’d only receive about £140 per week.

During the course of the litigation, Network Rail accepted at least part of Mr Snell’s position – that this scheme was indirect sex discrimination. Presumably, they accepted that fewer men would be entitled to full pay during shared parental leave and that they could not justify this policy.

Will this be costly for Network Rail? Apart from almost £30,000 that they were ordered to pay Mr Snell, it appears the direct cost will not be so high as Network Rail has opted to reduce mothers’ entitlement, rather than increase fathers’.

Is that response wise? Well that is too big a question for this post, and will surely have been considered at length by Network Rail. However, if they previously considered it sensible to pay generous maternity leave – presumably to encourage mothers to relax whilst raising children and then to return to work – that reasoning might still apply. After all, the total period of parental pay is neither increased nor decreased by shared parental pay. Granting full pay to the father will encourage him to take time off to raise his children before returning to work – and it should have the knock on effect of enabling mothers to return to work sooner, which is good for business.

If you require further advice on any employment issue, you may wish to join our community; on elXtr we have numerous guides on employment law issues, including a fact sheet explaining shared parental leave and pay in more detail.

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