SEX DISCRIMINATION - 23.04.2021

Shared parental pay and sex discrimination

The Employment Appeal Tribunal has held that it isn’t discriminatory to pay a man on shared parental leave (SPL) less than a woman on adoption leave. Why is this?

No sex discrimination

In Price v Powys County Council 2021 (see Follow up ), P took shared parental leave and was only paid statutory shared parental pay (ShPP), whereas those who took adoption leave (AL) received full pay. P compared himself to a female on AL and alleged his employer’s policy was direct sex discrimination. However, the Employment Appeal Tribunal (EAT) ruled that it isn’t discriminatory for an employer to provide enhanced adoption pay but not enhanced shared parental pay.

Material differences

S.23 Equality Act 2010 states that, on a comparison, there must be “no material difference between the circumstances relating to each case” . The EAT found that the purposes of SPL and AL are materially different - SPL is aimed at facilitating childcare, whereas AL goes beyond that and includes matters such as the forming of a parental bond and taking steps to prepare and maintain a safe environment for the child.

Pro advice. The EAT concluded that a woman on AL wasn’t an appropriate comparator; the correct comparator was a woman on SPL. Since a woman and a man on SPL would both have received the same pay under the employer’s policy, there was no sex discrimination.

Price v Powys County Council

Adoption leave can’t be compared to SPL in a sex discrimination claim as they are materially different. The correct comparator for a man on SPL is a woman on SPL.

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