Employers are being advised that they need to consider what they will pay employees who take Shared Parental Leave (SPL) from next April. If employers currently offer enhanced maternity pay they will need to consider if they will continue to offer this to employees taking SPL. Not to do so may be considered as indirect sex discrimination.

The same argument applies already however as employers offering enhanced pay during maternity leave, but not during additional paternity leave (APL) can currently face a claim of indirect sex discrimination.

Why indirect sex discrimination & not DIRECT sex discrimination? Blake Morgan solicitors recent blog post on the case Shuter v Ford Motor Company explains this really well.

Essentially, as both men & women (i.e. same sex partners of a woman who has been on maternity leave) can take APL, the difference in pay between maternity pay and pay for APL is not directly discriminating against men, but against anyone on APL. However, as it is predominantly men who take APL it amounts to indirect sex discrimination as it is applying a provision, criterion or practice that puts men at a disadvantage.

It seems feasible that this same reasoning will most likely apply in cases of Shared Parental Leave from next April. The Government have previously expressed a view that employers do not need to necessarily enhance Shared Parental Pay (ShPP) but Blake Morgan query if that will remain correct in light of cases such as the Shuter V Ford matter.

Interestingly, in the Ford case, they were able to objectively justify this indirect discrimination as a proportionate means of achieving a legitimate aim – that of encouraging women to work in a male dominated workforce and thereby supporting their diversity targets. This was a unique defence in their particular industry sector and not one that all employers would be able to rely upon.

So as media interest will keep this in the public eye over the next few months and may lead employees to query what they are entitled to, the key message here is that now is a great time to review your current policies and practices regarding maternity leave & pay, paternity leave & pay, and to plan for how you will deal with shared parental leave & pay!


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