can a man on Shared Parental Leave allege sex discrimination as a result of being paid less than a woman on Adoption Leave?
No held the Employment Appeal Tribunal in Price v Powys County Council.
When the Claimant and his wife found out they were having their first baby, they decided that he would stay at home to care for their child while his wife returned to work. He was employed by the Council whose Shared Parental Leave (ShPL) policy provided that employees taking this leave would only receive an amount equivalent to Statutory Maternity Pay. However, its Adoption Leave (AL) policy, said that employees entitled to this leave would receive full pay. The Claimant compared himself to a female comparator who received full paid AL and brought a claim for direct sex discrimination associated with adoption leave.
The Employment Tribunal dismissed his claim relying on the Court of Appeal decision in Capita Customer Management Limited v Ali, and held that there were material differences between the AL and ShPL schemes, and therefore the Claimant’s chosen comparator was inappropriate.
The Claimant argued that the policies were similar in the following ways: (1) that neither leave was compulsory, (2) that the two regimes operated similarly, (3) that it is immaterial that AL is an immediate entitlement while ShPL is not, (4) that partners who adopt and those who give birth both decide who will be the primary caregiver; and (5) that it did not matter that ShPL could be taken in discontinuous periods.
The Employment Appeal Tribunal disagreed and endorsed the first tribunal’s decision, holding that the purposes of AL and ShPL are different. AL is not just about facilitating childcare. The requirement that there be no material differences between the Claimant and his chosen comparator had not been met. Accordingly, there was no case for shared parent leave sex discrimination in paying the Claimant less than his comparator.
This blog is by Anita Vadgama, Legal Director for didlaw