October 15, 2014

No enhanced pay for additional paternity leave was discriminatory – but justified

The Respondent operated a maternity policy which provided for women on maternity leave to have full pay for up to a year. However the policy for additional paternity leave was statutory only. When the mother went back to work, the father took 20 weeks APL and was paid in accordance with the statutory minimum paternity pay. He argued that, had the mother remained on maternity leave, she would have been paid full pay, which was a difference of £18,000 for the same period of leave.

The claim for direct discrimination failed on the basis that the correct hypothetical comparator was a woman who had also applied for APL i.e. a female spouse or civil partner, who would have been treated no differently. The Claimant had sought to compare himself with a female employee on maternity leave, which was clearly different. In the claim for indirect discrimination, it was accepted that the relevant provision, criterion or practice for the purposes of the Equality Act was the Respondent’s policy of paying full pay to woman on maternity leave for the full amount of their maternity leave period, which of course would include 20 weeks after the birth of the child, which is the period after which the father can take additional paternity leave. The Respondent conceded that the group disadvantage was established and so the Tribunal looked at considering objective justification.

The objective of the Respondent in paying full pay throughout maternity leave was to encourage the recruitment and retention of women and the Tribunal considered this was a legitimate objective. As for justification, the Tribunal noted that, overall, the number of women in the workforce had increased at all levels and therefore considered that the objective was justified. Consequently, all the Claimant’s claims were dismissed.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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