As an employment lawyer and someone who believes in equality I would say that this should of course be the case however the reality is different. This is something which was recently head at an Employment Appeal Tribunal. It was the case of Capita Customer Management v Ali which was an appeal against a previous decision that it was sex discrimination to allow a man not to see his pay enhanced during shared parental leave in the same way as a woman was able to receive enhanced maternity pay.
Why would men take shared parental leave if they only get statutory minimum payment?
The question of who can afford to take shared parental leave is a hot topic as we analyse the recently published gender pay gap statistics. We begin to ask ourselves some searching questions about possible differences in male and female pay. If men are just going to receive the basic statutory minimum on shared parental leave and they are the highest earner, then where is the incentive to take part in shared parental leave?
This is sad when these laws were trumpeted as promoting a happy and flexible family life when in reality this does not seem to have been the case. We know that the reality was different though from the outset and that men have spoken out about the stigma of taking shared parental leave.
What is the point of shared parental leave?
In the Ali case, the Employment Appeal Tribunal explored the purpose of maternity leave and considered that the first part of maternity leave was to protect the health and wellbeing of the mother during pregnancy and after childbirth. In other words, it decided that this was a unique female situation which could not be compared to time spent on shared parental leave where it decided that the aim then was child care.
How long is maternity leave about health?
The question is though for how long are women in this protected time period? We see women going back to work at different times following childbirth and childbirth is not the same experience for all women. Mrs Ali is a case in point. She received medical advice to return to work to aid her recovery from postnatal depression.
The law recognises a “protected period” of 14 weeks. Ordinary maternity leave runs for 26 weeks. Some employers will enhance maternity pay until the end of ordinary maternity leave or beyond. If some or all of that time after 14 weeks strays into child care territory, arguably the sex discrimination argument strengthens and this was not lost on the Employment Appeal Tribunal.
To enhance or not to enhance?
So the Employment Appeal Tribunal has given us an answer for now but which only goes so far. It is an answer that will help to protect enhanced maternity pay undoubtedly. If the decision had gone the other way, we may well have seen employers bringing an end to enhanced maternity pay on the basis that it would have not been viable to offer enhancements to both sexes.
Of course, the more forward thinking employers out there may be looking at this as a way to get an edge over their competitors to retain the best talent through enhancing their benefits and being seen to promote a work culture of family friendliness. This is where most employees want to work in 2018 after all.