No discrimination where a woman on adoption leave is paid more than a man on shared parental leave

In Price v Powys County Council, a male employee (the Claimant), who wanted to take Shared Parental Leave (SPL) to care for his new-born baby while his wife returned to work, was unsuccessful in his appeal against an Employment Tribunal’s decision to dismiss his claim for direct sex discrimination against his employer (the Council) for paying a man on SPL less than a woman on adoption leave.

The Claimant and his wife, upon finding out that they were to have their first child, decided that the Claimant would stay at home to care for the baby while his wife returned to work. The Claimant informed the Council of their decision and asked for a breakdown of the pay he would receive when on SPL. The Council’s policy was to offer statutory pay only to employees on SPL (the rate of statutory shared parental pay is currently £151.97 a week, which will be paid for a maximum of 39 weeks, less any weeks spent by the child’s mother or adopter in receipt of statutory maternity pay, maternity allowance or statutory adoption pay), whereas those employees on Maternity Leave or Adoption Leave were offered enhanced rates of pay (specifically, those on Adoption Leave were entitled to full pay during this leave).

When the Claimant discovered he would only be entitled to statutory pay for SPL he decided against applying for SPL. The Claimant issued a claim for direct sex discrimination in the Employment Tribunal on the grounds that, if he took SPL, he would be paid less than a woman on maternity or adoption leave.

Direct sex discrimination occurs where, because of the protected characteristic of sex, a person treats another person less favourably than they treat or would treat others. When claiming direct sex discrimination, a claimant is required to show that they have been treated less favourably than a real or hypothetical comparator because of their sex, i.e. a member of the opposite sex whose circumstances are not materially different to their own. In this case, the Claimant relied on the following comparators:

• A female employee receiving enhanced maternity pay (the First Comparator); and
• A female employee receiving enhanced adoption pay (the Second Comparator).

The Employment Tribunal considered each comparator in turn. It rejected the First Comparator on the basis that the Claimant’s position was materially different to that of a woman on Maternity Leave; the Employment Tribunal relied on the judgment of the Court of Appeal in Capita v Ali (a case which ruled that it was not discriminatory to pay an enhanced rate of maternity pay, and only the statutory minimum for shared parental leave – for further details on this case, please see our Article here. The Employment Tribunal held that the correct comparator would be a female employee on SPL. As a female employee on SPL would have received the same pay, the Claimant’s discrimination claim failed.

The Employment Tribunal also rejected the Claimant’s Second Comparator; this comparator was rejected on the basis that a female employee on Adoption Leave was materially different to an employee on SPL. The Employment Tribunal concluded that the correct comparator was a female employee who had applied for SPL in an adoption situation. Again, as a female employee on SPL in an adoption situation would have received the same pay as the Claimant, the Claimant’s discrimination claim failed.

The Employment Tribunal dismissed the Claimant’s claims for direct sex discrimination. The Claimant appealed its decision to the Employment Appeal Tribunal (the EAT), arguing that the Employment Tribunal was wrong to reject the Claimant’s comparator of a female employee on Adoption Leave.

The EAT dismissed the Claimant’s appeal and held that the Employment Tribunal was correct to reject the Claimant’s chosen comparator of a female employee on Adoption Leave – the EAT agreed that the circumstances of a female employee on Adoption Leave are materially different to those of a male on SPL. A number of material differences which were highlighted by the EAT in its judgment include:

• The purpose of Adoption Leave goes far beyond the provision of childcare.
• Adoption Leave could commence before a child’s placement, whereas SPL could not.
• Adoption Leave is an immediate entitlement upon placement, whereas SPL is not.
• SPL can only be taken with the partner’s agreement to give up Adoption Leave.
• SPL must be taken within 52 weeks of the placement and could be “dipped in and out” of.

This judgment, subject to any successful appeal by the Claimant, means that employers can be satisfied that males employees will not be discriminated against on the grounds of sex (nor will they have a valid equal pay claim against their employer) where the employer pays a lower rate of pay to employees on SPL than it does to employees on Adoption Leave.