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Employment A-Z

S

 

Shared Parental Leave Case Law

Snell v Network Rail ETS/4100178/2016

An ET in Scotland has awarded a Network Rail employee £28,321 after he brought a claim of indirect sex discrimination because his employer's shared parental leave policy provided for a period of full pay to mothers and primary adopters on shared parental leave but paid only statutory shared parental pay to partners and secondary adopters.

S and his wife both work for Network Rail. They informed their employer that they intended to take shared parental leave for their child, who was due on 2 January 2016.

Mr and Mrs Snell initially suggested that she would be taking 27 weeks' shared parental leave and he would be taking 12 weeks' shared parental leave (from 4 April to 27 June 2016).

S was advised that, under Network Rail's family-friendly policy, partners and secondary adopters were entitled to up to:

  • 39 weeks' shared parental pay paid at the rate of statutory shared parental pay;
  • and a further 13 weeks' unpaid leave.

Under the policy, mothers and primary adopters were entitled to up to:

  • 26 weeks' shared parental pay paid at full pay (with maternity and adoption pay counting towards this, so that the mother or primary adopter cannot get any more than 26 weeks' leave on full pay);
  • a further 13 weeks' paid at the rate of statutory shared parental pay; and
  • a further 13 weeks' unpaid leave.

In a letter dated 22 September 2015, S raised a grievance that Network Rail's approach to shared parental leave was discriminatory on the ground of sex, when his pay entitlement is compared to that of his wife. As the grievance related to the employer's national policy, S's line manager, G, did not feel he was the right person to decide on the merits of the grievance and referred the matter to the HR department. The HR department agreed that G was not the best person to deal with the grievance and said that he would be contacted in due course.

In October, S raised his concerns over the lack of progress in dealing with his grievance with G, who contacted the HR department on 20 October to check on progress.

5 November 2015 - A grievance hearing, chaired by G, took place. However, S was not informed of the outcome of his grievance. He chased up the matter with G later in November.

5 January 2016 - G "reconvened" the original grievance hearing as he "wanted to inform the claimant of his decision in person". On receipt of advice from the HR department, G informed S that his grievance was being rejected. The grievance report dated 5 January 2016 said that:

  • for there to be sex discrimination, the company would need to pay women a different rate to men, and that it was entitled to give a different status to the mother and partner;
  • S's comparator would be "a woman sharing parental leave, not the mother";
  • it is up to the employer to decide how its enhanced shared parental pay works;
  • the policy is designed to retain female employees in a male-dominated industry; and
  • Network's Rail's solicitors provided advice that the company's approach is in line with the approach of the majority of employers that they represent.

The outcome meeting was followed by a grievance outcome letter dated 8 January.

13 January 2016 - S appealed against the decision highlighting:

  • the length of time taken to deal with his grievance;
  • Network Rail's choice of comparator, suggesting that the correct comparator is "a woman taking shared parental leave in order to care for a child";
  • that "there is no material difference between a father taking shared parental leave and mother taking shared parental leave";
  • that Network Rail's policy reinforces stereotypes that mothers are the primary care givers; and
  • that he could not find any examples of other employers that pay mothers an enhanced rate while paying fathers the statutory minimum.

28 January 2016 - S lodged employment tribunal claims for direct and indirect sex discrimination.

23 February 2016 - an appeal hearing took place with another manager, T, but it was adjourned for the manager to seek legal advice. The appeal hearing was reconvened on 11 March.

5 April 2016 - S's appeal was rejected in a letter.

1 July 2016 - Network Rail amended its shared parental leave policy so that both the mother and the partner receive only statutory shared parental pay.

In a letter dated 15 July, Network Rail informed the employment tribunal that it had decided not to contest S's indirect sex discrimination claim. This was on the understanding that S was withdrawing his direct sex discrimination claim.

26/27 July 2016 - a remedy hearing took place.

1 August 2016 - S amended his original request to take shared parental leave. He requested to take 24 weeks' shared parental leave, with Network Rail's intention being to pay him at the statutory shared parental pay rate.

29 August 2016 - the remedy judgement was issued.

With the agreement of the parties, the employment tribunal made a declaration that S was indirectly discriminated against in relation to his sex by the application of his employer's family-friendly policy, which put him at a particular disadvantage during shared parental leave as a man, when compared to a woman. However, the employment tribunal stopped short of making a recommendation to the employer. It highlighted the principle that tribunals should avoid making recommendations as to the payment of wages, and considered an award of compensation to be sufficient in this case.

The employment tribunal awarded Mr Snell:

  • £16,129 for future loss of earnings, based on his amended request to take 24 weeks' shared parental leave;
  • £6,000 for injury to feelings, taking into account the stress and uncertainty that had been caused;
  • £2,779 for the employer's failure to follow the Acas code of practice on disciplinary and grievance procedures, given the flaws in the grievance process;
  • £1,753 for pension loss; and
  • £458 in interest.

The employment tribunal also ordered Network Rail to reimburse £1,200 in employment tribunal fees to Mr Snell.

Mr Snell's total award was £28,321.

What does this mean for Local Government?

Chances are this won't cause major issues for us. It is an Employment Tribunal decision so it is not binding on other Tribunals and given the employer admitted indirect discrimination there is unlikely to be an appeal.

If we have enhanced our shared parental leave pay it has more than likely been enhanced regardless of who takes the leave.

Having a separate maternity policy that provides a mother with enhanced maternity pay while only providing statutory pay for shared parental leave was not in question in this case and so is still considered lawful. However, it may not be long before we have a test case on this and that will be interesting reading!