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
Ifthe employer enhancesmaternity pay but doesnot enhance adoption pay, there is a risk that this practice could be found to be indirect discrimination on grounds ofsex, sexual orientationor disability. Thisis becauseadoption leave can takenby men,same sex couples and people with fertility issues (which might, in some cases, arisebecause ofa disability).
To defend against an indirect discrimination claim,the employer mustshow that the there was a legitimate aim to practice and thatitused 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,wewould advise against treating adoption leave and pay differently to maternity leave and pay.
Shared Parental Leave Pay
An employeris not requiredto pay enhanced Shared parental pay where it pays enhanced maternity pay and/or enhanced adoption pay, based on recent case law:
Payingemployeesenhancedmaternity pay but statutory shared parental pay is not discrimination on grounds of sex (Court of Appeal in Capital Customer Management v Ali).
Payingemployeesenhanced adoption pay alongside lower shared parental pay is not direct discriminationon grounds of sex(EAT in Price v Powys County Council).
The basis of the distinctionbetween shared parental leave and maternity/adoption leaveis that the primary purposes oftypes of leave are different. The purpose of shared parentalleave is to providechildcare, but the primarypurposesof maternity leave and adoption leave arewider, andinclude recovering from birth (in the case of maternity) and forming a bond with the child.
Thereforean employercan 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 isnot obligated to enhance paternity pay above statutory paternity pay where it enhances maternity pay. Itis unlikely that an employee entitled to statutory paternity pay could successfully sue for discrimination, on the basis that theemployerenhances maternity pay. Previous cases have confirmed that the law allows for women to be treatedmore favourablythan men in these situations,on grounds of pregnancy, maternity or that they have recently given birth.
Time off for dependantsand 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 couldconsiderofferinga fixedmaximumnumber of daysper year as paidtime 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 employercould 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, providedstaff are treated consistently.
We hope this article has been helpful. If you have any queries, please get in touch.
If you would like further information about this topic or need advice on an employment law or HR issue, please contact Mark Mason Employment Law or contact us for more details.
