Eight months after shared parental leave was introduced in the UK, there is fertile ground for litigation by fathers who are not being offered the same benefits by their companies as women on maternity leave.
The new shared parental leave scheme, introduced in April 2015, creates a total of 52 weeks of leave, 39 weeks of which is paid at the statutory rate of £139.58 a week or 90% of a person’s average weekly earnings, whichever is lower. This can be shared between eligible parents upon the birth or adoption of a child. The existing maternity leave and pay schemes remain and any time or pay taken as maternity leave (two weeks of which is compulsory) is subtracted from the total available.
The legislation is silent about what happens in cases where companies offer enhanced packages for women on maternity leave – such as periods of full pay during maternity leave. These employers now have to decide whether to extend this to fathers. An enhanced package was offered by the civil service and it was hoped that commercial employers would follow suit – some did.
The explicit policy message behind the new rules was that the new statutory right would not affect the enhanced occupational packages offered by many employers to mothers or, in the context of adoption, the main adopter. But some legal commentators suggest that there could be looming legal challenges under equality law on the grounds of discrimination.
Limited take-up so far
Shared parental leave represents a huge policy milestone by taking a symbolic step to enable working fathers to take a more active role in caring for their children. But we anticipated a number of niggling issues to arise.
The extension of women’s parenting rights to fathers is so far proving limited. A recent study among human resources (HR) directors of 70 companies of different sizes from a variety of sectors found that 60% had received none or just a few requests for shared parental leave.
The majority of HR directors cited the perception that taking leave would be “frowned upon or career limiting” as a key reason. Only 43% of participating companies offered a shared parental leave scheme that went beyond the statutory minimum. While 12% didn’t intend to do so for the foreseeable future, 33% were considering enhancing benefits once they could better understand its business and financial impact.
We think that this is the policy’s fundamental flaw: maintaining enhanced schemes for mothers without mandating equivalent schemes for fathers creates a disincentive for couples to share parental leave. Research has shown that fathers’ use of parental leave is significantly influenced by the benefit levels and a company’s “father friendliness”, including role models and commitment to caring values.
By failing to address enhanced schemes, the legislature has created legal uncertainty, leaving scope for fathers to test access through litigation using the anti-discrimination provisions of the Equality Act 2010. Of course this doesn’t apply to everyone; each case would be taken on its own merits and individuals should seek their own legal advice.
Possible grounds for discrimination claims
Some legal commentators have highlighted the potential for male employees on shared parental leave to bring sex discrimination claims. Yet unlike pregnancy and maternity, the Equality Act 2010 does not protect parenthood. This means that a discrimination claim by a heterosexual father would have to be squeezed into ill-fitting arguments based on sex discrimination.
For a direct discrimination claim a male parent would need to show that he had been treated less favourably than a comparable female, because of his sex. He would also need to contend with the exception to direct discrimination that allows for special treatment of women in connection with pregnancy or childbirth. For a claim of indirect discrimination he would need to show that an enhanced maternity package puts men, as a group, at a particular disadvantage compared to women, and that it cannot be defended as “objectively justified”.
A 2014 Employment Tribunal claim taken by an employee at Ford Motor Company on additional paternity leave (the predecessor to shared parental leave) who sought to access the extra benefits to women on maternity leave, was unsuccessful. The direct discrimination claim failed because the correct comparator was a woman on additional paternity leave – for example a woman in a same sex relationship. Because women and men on additional paternity leave were treated the same it wasn’t possible to show “less favourable treatment”. The indirect discrimination claim failed because the maternity leave package was justified.
Whether differences between maternity provision and shared parental leave would withstand the scrutiny of the appeals courts remains to be seen.
Not promoting shared parenting
Commentators are exploring arguments based on discrimination law, that might help fathers. Success will depend on skilfully crafted legal argument but while such nuance may help individual claimants, it’s not clear that it will contribute to the ideal of shared parenting.
The fact that couples may now switch from maternity leave to shared parental leave after just two weeks softens the distinction between maternity – pregnancy and childbirth – and parenthood. This may support arguments that heterosexual mothers and fathers are in the same situation and are comparators for direct discrimination claims.
Where an indirect discrimination claim is made, the defence of “objective justification” is available. Here the broad goal of shared parenting may be pitted against the narrow aim of promoting an equal representation of women in one workplace. For example, Ford successfully defended their employee’s indirect discrimination claim on the basis of their “legitimate aim”: to recruit and retain women in the male-dominated workforce. But while that argument may benefit some employers, from a societal perspective it is a red herring.
What’s clear is that the new legislation has done little to enshrine shared parenting as a societal ideal and so steps towards realising this goal through discrimination claims are likely to be incremental rather than transformative. What is needed is a route to recognising, in law, the value of parenting. The new shared parental leave legislation is an opportunity missed.
Jana Javornik has recently received funding from the UK Commission for Employment and Skills and advised the Commission for Childcare Reform.
Liz Oliver receives funding from the Economic and Social Research Council, the European Parliament, Vitae.