Enhancing pay for maternity and other types of family leave

If an employer pays employees more than statutory maternity pay when on maternity leave, does this mean that the employer is also obliged to enhance pay for other types of family leave? 

In this article, we look at some of the other types of family leave and advise on what employers should consider regarding each type of leave.

Adoption pay

If the employer enhances maternity pay but does not enhance adoption pay, there is a risk that this practice could be found to be indirect discrimination on grounds of sex, sexual orientation or disability.  This is because adoption leave can taken by men, same sex couples and people with fertility issues (which might, in some cases, arise because of a disability).

To defend against an indirect discrimination claim, the employer must show that the there was a legitimate aim to practice and that it used a proportionate means to achieve that aim.  It is difficult to think of a legitimate aim for this practice.

Whilst there is no decided case law on this point, we would advise against treating adoption leave and pay differently to maternity leave and pay.

Shared Parental Leave Pay 

An employer is not required to pay enhanced Shared parental pay where it pays enhanced maternity pay and/or enhanced adoption pay, based on recent case law:

  • Paying employees enhanced maternity pay but statutory shared parental pay is not discrimination on grounds of sex (Court of Appeal in Capital Customer Management v Ali).
  • Paying employees enhanced adoption pay alongside lower shared parental pay is not direct discrimination on grounds of sex (EAT in Price v Powys County Council).

The basis of the distinction between shared parental leave and maternity/adoption leave is that the primary purposes of types of leave are different.  The purpose of shared parental leave is to provide childcare, but the primary purposes of maternity leave and adoption leave are wider, and include recovering from birth (in the case of maternity) and forming a bond with the child.

Therefore an employer can continue to offer statutory shared parental pay, whilst at the same time offering enhanced maternity pay and enhanced adoption pay, without risk of a discrimination finding.

Paternity pay 

An employer is not obligated to enhance paternity pay above statutory paternity pay where it enhances maternity pay.  It is unlikely that an employee entitled to statutory paternity pay could successfully sue for discrimination, on the basis that the employer enhances maternity pay.    Previous cases have confirmed that the law allows for women to be treated more favourably than men in these situations, on grounds of pregnancy, maternity or that they have recently given birth.

Time off for dependants and Parental Leave 

Employees are entitled to a reasonable amount of time off to deal with emergencies involving dependants.  There is no right to pay for time off for dependants.  Employers looking at their overall benefits package could consider offering a fixed maximum number of days per year as paid time off for dependants but there is no obligation to do so.

Similarly, Parental leave provides up to 4 weeks unpaid leave per annum, subject to a total of 18 weeks per child.  An employer could consider providing some form of pay for parental leave.  However we do not anticipate a claim for failing to pay for these types of leave, provided staff are treated consistently.

We hope this article has been helpful. If you have any queries, please get in touch.


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