Could you be indirectly discriminating? Enhanced maternity and shared parental leave pay pose risks for employers

The case
An employment tribunal has recently decided the case of a male employee, Mr Shuter, who was employed by Ford Motor Co. Mr Shuter received only statutory paternity pay during a period of Additional Paternity Leave and argued that he was “discriminated against on grounds of his sex” because women at Ford taking Additional Maternity Leave received enhanced maternity pay. It was accepted by Ford that more men than women applied for Additional Paternity Leave, and that the policy therefore conferred a “group disadvantage” on men. Mr Shuter argued that as a result he was “indirectly discriminated against”.

Ford succeeded in defending the claim, as they were able to argue that the industry was male-dominated, that they made strenuous efforts to recruit and retain women, and one way of doing this was to enhance maternity pay. If this policy was not justified, then the result would be not to enhance men’s Additional Paternity Pay, but to reduce women’s maternity pay to statutory levels, whereby everyone would be paid the same.

The tribunal accepted, in this case, that the policy was justified as its “legitimate aim” was to enhance women’s participation in a historically male industry.

Implications for employers
But what of workforces where there is no obvious need to retain more women than men, where there is no gender imbalance? If your business has historically paid women on maternity leave over and above the statutory entitlement, will you need to consider paying men taking shared parental leave an equivalent amount? Or would you consider reducing women’s maternity pay to the statutory level?

These are complex questions, and it may be that the legitimate needs of your business mean that you can treat women more preferentially than men. Also, there may not be the required evidence of “group disadvantage” (as set out above in the Ford case) which would be required to successfully bring a claim.

Given the complexity of this issue, if you have any concerns about whether your maternity, paternity and forthcoming shared parental leave policies and procedures are legally compliant it’s important to seek appropriate advice.