In the Snell v Network Rail Infrastructure case, a male employee has succeeded in his claim for sex discrimination against his employer, Network Rail, and has been awarded nearly £30,000. His claim was based on the fact that while he would receive only statutory pay for any period of shared parental leave, his partner, the child’s mother, who also worked for the same employer, would receive full pay for 26 weeks followed by a further 13 weeks of statutory pay.
Network Rail conceded that its family-friendly policy was discriminatory in relation to its treatment of the claimant during the period of shared parental leave. As a result of the claim, the employer has amended its shared parental leave policy so that a mother’s pay during periods of shared parental leave has been reduced to the same statutory rate received by a father taking shared parental leave.
Although this case is a Scottish tribunal case and is therefore not binding on English tribunals, it is not a surprising decision. Government guidance on shared parental leave suggests that if an employer offers an occupational scheme to a mother on shared parental leave it could constitute sex discrimination if such an occupational scheme was not offered to a father or the mother’s partner.
There had been press reports that Network Rail had reduced its enhanced maternity pay to the statutory level as well. However, this is not the case and it, like many employers and following government guidance, continues to offer enhanced maternity pay, but not shared parental leave pay.
Therefore the question of whether an employer can differentiate in this way, and any objective justification as a defence (for example, to recruit and retain women in a male-dominated workforce) remains another discrimination argument for another day.
Catrina Smith is partner in the employment team at law firm Norton Rose Fulbright