Sarah Gilzean: Shared parental leave for male employee is not comparable to female adoption leave


Sarah Gilzean: Shared parental leave for male employee is not comparable to female adoption leave

Sarah gilzean

Sarah gilzean explains a recent case in which a male employee on shared parental leave could not compare his salary with a woman on adoption leave.

In Price vs. Powys County Council, the Employment Appeal Tribunal (EAT) dismissed an appeal in a sex discrimination complaint by a male employee who claimed he could compare his salary on shared parental leave with a woman on adoption leave .

The claimant and his wife jointly agreed that he would stay at home to care for their newborn baby while his wife returned to work. Claimant’s employer, Powys County Council (respondent), had a policy on shared parental leave which stipulated that employees taking such leave would receive an amount equivalent to statutory maternity pay. In contrast, employees who took adoption leave were entitled to full pay.

In arguing his case of discrimination on the basis of sex, the Claimant compared his situation to that of an employee on adoption leave and argued that the Respondent’s policy resulted in direct discrimination on the basis of sex. The TE rejected the request, concluding that there were significant differences between the situation of a person on adoption leave and that of a person on shared parental leave, making the comparator chosen by the provider inappropriate.

The EAT reviewed the relevant provisions of the Paternity and Adoption Leave Regulations 2002 (“Adoption Leave Regulations”) and those of the Shared Parental Leave Regulations 2014 (“Shared Leave Regulations”). “). The EAT found that there were important differences between the two types of leave:

  • adoption leave can start before the child is placed, unlike shared parental leave.
  • adoption leave is an immediate right at the time of placement, unlike shared parental leave. The EAT said this is an important difference highlighting the need for an adopter to have time at the start of the placement to prepare and maintain a safe and stable environment for the child and to develop a parental bond. .
  • shared parental leave can only be taken with the partner’s agreement to renounce adoption leave.
  • shared parental leave must be taken within 52 weeks of placement and within the period when it can be ‘dipped in and out’. The EAT noted that this flexibility in shared parental leave is consistent with the goal of giving parents (whether born or adoptive) greater choice in childcare responsibilities. Such leave is in line with its purpose which, in the opinion of the EAT, goes beyond childcare.

The EAT therefore concluded that adoption leave is significantly different from shared parental leave and, as such, it concluded that there was a significant difference between the situation of the claimant and that of his comparator. The EAT confirmed the court’s findings that a more suitable comparator would be a woman on shared parental leave. In such a case, the comparator woman would receive the same salary under the shared parental leave policy as the claimant and, therefore, there was no prima facie case of discrimination based on sex.

Sarah gilzean is a senior partner at Morton Fraser

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