Is it discriminatory to pay male employees on Additional Paternity Leave less than you would pay female employees on Additional Maternity Leave?
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Is it discriminatory to pay male employees on Additional Paternity Leave less than you would pay female employees on Additional Maternity Leave?
No, according to the recent Tribunal case of Shuter v Ford Motor Co Ltd. A father (or female partner of a mother) can take up to 26 weeks’ Additional Paternity Leave (APL) if the mother returns to work early. The father is also entitled to any unused maternity pay which, given that the earliest APL can be taken is 20 weeks after the birth of the child, is a maximum of 19 weeks at the basic rate of £138.18 per week.
In this case, Ford offered female employees on maternity leave full pay for up to 52 weeks but male employees on APL were paid statutory additional paternity pay only. Mr Shuter took 20 weeks of APL and brought claims against Ford for direct and indirect sex discrimination. He lost both claims.
In relation to direct sex discrimination, Mr Shuter sought to compare himself to a woman on maternity leave who would have received full pay throughout. However, the Tribunal held that the correct comparator was a woman on APL (i.e. a female spouse or civil partner), who would have been treated in the same way.
In relation to indirect sex discrimination, the Tribunal found that Ford’s policy of paying full pay to women on maternity leave 20 weeks after the birth of their child was potentially discriminatory. However, Ford argued that its objective in paying full pay throughout maternity leave was to recruit and retain women. It also produced evidence that the overall number of women in its workforce had increased, including in professional and senior management positions. The Tribunal found Ford’s policy to be a proportionate means of achieving this legitimate aim and therefore dismissed Mr Shuter’s claim.
Have your organisations had many people taking APL and, if so, do you pay enhanced pay or statutory pay?