Employee awarded damages of £28,321 for discriminatory shared parental leave policy.

Since the introduction of shared parental leave in April 2015, there has been much debate as to whether offering an enhanced maternity pay scheme but only a statutory shared parental pay scheme could lead to liability for sex discrimination. The recent case of Snell v Network Rail is the first case to deal with the issue of discrimination and shared parental leave and would suggest that the debate is only just beginning.

Mr and Mrs Snell were both employed by Network Rail and had decided to share the parental leave available to care for their child. Under Network Rail’s SPL policy, Mrs Snell was entitled to 26 weeks’ enhanced pay during SPL, whereas Mr Snell was entitled to statutory pay only (of £139.58 per week). Following an unsuccessful and protracted internal grievance and appeal process – which held that the policy was a proportionate means of achieving a legitimate aim (that being, the recruitment and retention of women in a male dominated workforce) – Mr Snell brought claims in the Employment Tribunal for both direct and indirect sex discrimination.

Prior to the Tribunal Hearing, Mr Snell withdrew his claim for direct discrimination and Network Rail accepted that their treatment of Mr Snell had amounted to indirect discrimination. Accordingly, the Tribunal awarded Mr Snell damages of £28,321 which included, among other things, £6,000 for injury to feelings and £16,129 for future loss (being the difference between the statutory and enhanced pay on offer).

This decision is only first instance and is not legally binding on other tribunals across the country; it is also likely to be of limited value in that the arguments for and against the discriminatory nature of the policy were not fully set out or debated by the Tribunal. However, it could well be indicative of the direction of travel that Network Rail accepted liability and have since changed their policy to equalise treatment between mothers and fathers. In addition, the level of compensation awarded would seem to support the contention that such treatment is not acceptable.

Whilst this case concerned differing pay for men and women under the same shared parental leave policy – not a maternity policy as against a shared parental policy – it is possible that, in time, this distinction may not be of material significance and employers would be strongly advised to consider the package they offer to both males and females in terms of family leave and align where at all possible and have a solid objective justification where not.

Should you have any questions in relation to Shared Parental Leave or any other employment law issues, please do not hesitate to contact Matt Huddleson or Sarah Luxmoore.