Just over 4 years ago, on 5th April 2015 to be precise, the right to shared parental leave was introduced. This gives employed parents a legal right, following the birth of their child, to share up to 50 weeks of leave between them and to receive statutory pay for 37 of those weeks. Statutory pay is calculated at either 90% of their average weekly earnings or £148.68, whichever is lower. To take advantage of shared parental leave a mother must end her maternity leave, and “move” onto the shared parental leave scheme. The parents can then decide how much time each of them takes from the available 50 weeks.

Before shared parental leave was introduced, an employed father’s only legal right to time off was by taking paternity leave. This allows a father, provided the leave ends within 56 days of the baby’s birth, to take up to 2 weeks’ leave and receive statutory pay. Any additional time off depends on the goodwill of their employer and is usually unpaid.

In contrast, an employed mother must take 2 weeks’ compulsory leave immediately after the birth (4 weeks if she works in a factory) and she can then take an additional 50 weeks’ leave (48 weeks for factory workers). Of this, the first 6 weeks are paid at 90% of her gross average weekly earnings, the next 33 weeks at statutory pay and the remaining weeks are unpaid.

It was predicted that there would be a huge uptake by fathers wanting to spend time with their child and / or to allow mothers to return to work knowing their child would be looked after by their father for “free” rather than having to pay for child care. However, a recent survey of 1,000 fathers, commissioned by PowWowNow, has revealed a different truth. Only 14% of those interviewed have taken shared parental leave since its’ introduction. Rather sadly, 85% of those interviewed admitted they wished they had taken more time off to spend with their child/children.

I suspect that a major reason for shared parental leave not being taken up as widely as expected is down to money. A lot of companies offer an enhanced maternity package which makes it more cost effective for mothers to take the time off, despite the impact on their careers and future pay. Whilst some companies do offer an enhanced shared parental leave package this is not yet the norm, and two recent cases heard by the Court of Appeal have made it less likely to become so. These are summaries of those cases:

Mr Ali sought to argue that it was direct sex discrimination to pay male employees taking shared parental leave less than a woman taking maternity leave. The Court of Appeal disagreed finding that a woman taking shared parental leave would have received the same pay as him (a man) and so there was no difference in treatment. The premise behind this being that maternity leave is for the benefit of the mother, allowing her to recover from the physical and emotional effects of childbirth amongst other things, rather than to help with childcare as Mr Ali had argued. As such, maternity leave cannot be compared to shared parental leave.

Mr Hextall sought to argue that only paying statutory pay whilst he was on shared parental leave was indirect sex discrimination as it caused a disadvantage to men. The Court of Appeal held that Mr Hextall’s claim should have been brought as an equal pay claim under section 66 of the Equality Act 2010. However, even if Mr Hextall had done so, the Court of Appeal held that his claim would have failed as paragraph 2 of Schedule 7 of the Equality Act 2010 allows special treatment in relation to terms of work to be given to women in connection with pregnancy or childbirth. The Court of Appeal, agreeing with the reasoning in Mr Ali, also noted that women on maternity leave are materially different to parents taking shared parental leave and should not be included in a pool for comparison purposes.

Once the pool is limited to parents being paid statutory pay whilst on shared parental leave, it is apparent that this provision, criterion or practice does not cause a particular disadvantage to men compared to women and so there is no indirect sex discrimination. The Court of Appeal further stated that if women on maternity leave should be included in such a pool, it is likely any disadvantage caused to men such as Mr Hextall would be justified as a proportionate means of achieving the legitimate aim of allowing mothers time to recover from pregnancy or childbirth.

Both Mr Ali and Mr Hextall are expected to seek permission to appeal to the UK Supreme Court. Depending on the Supreme Court’s decisions, it may be that in the future employers will have to ensure shared parental pay matches any enhanced maternity pay. Alternatively, employers may decide to reduce their maternity packages but that would bring about other problems such as retaining employees and having a negative effect on workplace morale.

The ideal result, from an employee perspective (and mine as a mother of two) would be to follow the Swedish model where parents are entitled to 480 days (16 months) of paid leave at about 80% of their salary, although there is a cap. Parents have, until the child is 8 years old, to take the time and fathers have an exclusive right to take at least 90 of those days. Given that this would probably come at the cost of higher taxes, it is unlikely to happen any time soon but a parent can dream…

Sarah Twigger-Thompson – rhw Solicitors, Guildford

Contact Sarah for all employment law matters. Email sarah.twigger-thompson@rhw.co.uk or call us on Guildford 01483 302000