Certainty on Shared Parental Pay?LexLeyton
The rules on Shared Parental Leave (SPL) and Pay have been in place for almost five years. Uptake has been low in general, caused by a combination of the complicated nature of the rules and a lack of promotion by employers. Fortunately, some clarification has arrived which will be helpful in promoting SPL on both of those fronts. Until recently, the thorny question of enhancing Maternity Pay but not enhancing Shared Parental Pay had been the cause of uncertainty. Whether this amounted to sex discrimination was the basis of two cases: Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management Ltd, although each argued the point differently.
The Court of Appeal found in both cases that it was not discriminatory to enhance Maternity Pay while only offering Shared Parental Pay (SPP) at the statutory minimum level. The rationale for the first of these decisions was based on the identity of the correct comparator for a claim of direct discrimination (the correct comparator for a man on SPL is a woman on SPL, as opposed to a woman on Statutory Maternity Leave). In terms of the claim for indirect discrimination, the Court made reference to the special nature of Maternity Leave (and the consequent more favourable treatment that is allowed under the law for new mothers) along with pointing to the materially different circumstances of women on Maternity Leave and men on SPL.
The journey of both cases had been widely expected to end in the Supreme Court for a final decision on the point. However, Mr Ali has not opted to appeal and Mr Hextall’s application for leave to appeal has been refused by the Supreme Court. So neither case will progress further and the Court of Appeal’s decision defines legal position on the question. Given the complexity of the rules on SPL and SPP, any degree of certainty is to be welcomed.
SPL is unquestionably a positive development. Promotion of both parents taking a major role in the care for a new baby is to be encouraged and the system does just that. However, it does so in a way which is filled with jargon and form-filling (‘Leave Curtailment Notices,’ ‘Notices of Entitlement and Intent to Take SPL’ and ‘Declarations of Consent and Entitlement’ abound) which makes the process inaccessible and unwieldy. The system was put in place through one piece of primary legislation, which in turn amended another piece of primary legislation, both of which are supported by no fewer than five pieces of secondary legislation.
Given that the Employment Bill as put forth by the Government at the most recent Queen’s Speech contended that a flexible approach to work will be the future default position (and, lest we forget, SPL was conceived under the working title of Flexible Parental Leave and remained so named in its infancy), it is confusing that nothing has been done to demystify the process and to make it more accessible. Younger generations of workers value flexibility and a supportive approach to all sorts of time off is attractive. Where competition for talent is high, promotion of flexibility and support can help to set your business apart from the crowd.
Our Policy Guide to SPL is a great tool for employers to make sure that they have an accessible SPL policy and promote this in a way which reflects the values of a supportive, sustainable business.
If a free consultation would help you consider how implementing an SPL policy could benefit your workforce and your business let us know or you can download our Policy Guide to SPL For more information, and to access the Guide