Category Archives: Paternity

All Men Are Created Equal Unless Their Comparators Are Female!

SJB18305THE CURRENT LAW

The law as it currently stands provides that a woman is entitled to take up to 52 weeks Maternity Leave and to receive up to 39 weeks Maternity Pay, set at a minimum level by the Government each year. Some employers choose to enhance this pay in accordance with internal policies.

Since 2015, fathers are only entitled to 2 weeks Paternity Leave, but can opt to share the Maternity Leave and Maternity Pay with a child’s mother under the Shared Parental Leave (“ShPL”) Scheme.

THIS CASE

The question for employers, and specifically that raised by Mr. Ali in this case is this…should an employer who has an internal policy of paying enhanced Maternity Pay to female employees, pay this enhanced rate of pay to a father who takes ShPL, or should the father simply be paid the statutory minimum level of pay under the Shared Parental Pay (“ShPP”) scheme?

In this specific case, female employees employed by Capita Customer Management (“Capita”) who had transferred into the business via TUPE, were entitled to Maternity Pay comprising 14 weeks’ pay at the level of their basic salary, before moving to 25 weeks’ pay at the statutory minimum level (currently £140.98 per week). Transferring male employees were entitled to 2 weeks paid Paternity Leave.

Mr Ali, took 2 weeks’ Paternity Leave immediately following the birth of his daughter, but then took the decision to request further time off work to care for his daughter. Capita advised that he was entitled to take a period of ShPL, but informed him that he would be paid ShPP only – he would not be entitled to the 14 weeks’ pay at the level of his basic salary as his partner would have been if she had decided to continue Maternity Leave.

Mr. Ali objected to this, alleging that it was open to parents to choose which one of them should be the primary caregiver, and for an employer to elect to pay a mother more than a father in respect of the necessary leave taken for this purpose was direct sex discrimination.

The Tribunal upheld Mr. Ali’s argument. It confirmed that he could compare himself to how a hypothetical female colleague who had taken Maternity Leave would have been treated, and the denial of full pay to Mr. Ali was unfavourable treatment due to his sex.

CONTRASTING DECISION

However, employers should be aware that this is only a first instance Tribunal decision and is currently being appealed.

In another recent case based on similar circumstances, the Tribunal reached a different decision (Hextall v Chief Constable of Leicestershire Police), where it was held that Maternity Leave and Maternity Pay are “special treatment” afforded to women in connection with pregnancy and childbirth, which did not go any further than “reasonably necessary” on the basis that women suffer disadvantages in work due to pregnancy and maternity, which typically detrimentally affects a mother’s finances more than a fathers.

Capita and Hextall also conflict on whether a valid comparison can be made between a mother taking Maternity Leave and parents taking ShPL. Both men and women can take ShPL, whereas only a female can take Maternity Leave. Maternity leave is also different in that women can choose to start this before their child’s birth, whereas ShPL cannot start until 2 weeks’ after birth, and it is impossible to take ShPL without both parents agreeing to this, whereas Maternity Leave can be taken as of right.

The Hextall Tribunal concluded that the correct comparator for the father in question was a woman taking ShPL, and as the woman would receive ShPP on the same terms as the man, there was no less favourable treatment and accordingly no discrimination.

WHAT NOW?

The question as to which case is the correct interpretation of the law will now be left to the Appeal Tribunals. Therefore, before employers rush to change their policies, they may wish to review the business reasons behind their current family policies, whilst keeping abreast of the final decisions in these cases.

If you would like more advice about any of the issues raised in this article, please contact a member of our team on 01604 871143.

FG Solicitors’ quick guide to key payments by employers

As part of our popular “quick guides” series, our team of employment law experts has produced an easy to use guide to key payments by employers. For more comprehensive advice on payments which should be made as well as when employees qualify for them, please contact a member of our team using the details below.

STATUTORY WEEKLY PAYMENTS DURING ABSENCES FROM WORK

April 16

Maternity/adoption pay prescribed rate (max)

£139.58

Paternity pay (max)

£139.58

Shared parental pay (max)

£139.58

Sick pay

£88.45

Lower earnings limit  (a)

£112.00

 

NATIONAL MINIMUM WAGE RATES (HOURLY)

April 16

October 16

Apprentices  (b)

£3.30

£3.40

Age 16-17

£3.87

£4.00

Age 18-20

£5.30

£5.55

Age 21-24

£6.70

£6.95

National Living Wage (Age 25+)

£7.20

£7.20

 

KEY COMPENSATION LIMITS

April 16

Week’s pay

£479

Statutory redundancy payment: up to 30 weeks’ pay

£14,370

Unfair dismissal basic award: up to 30 weeks’ pay

£14,370

Unfair dismissal compensatory award  (c)

£78,962

Breach of right to be accompanied: up to 2 weeks’ pay

£958

Breach of flexible working regulations: up to 8 weeks’ pay

£3,832

Failure to give written particulars of employment: 2 or 4 weeks’ pay  (d)

£958 or £1,916

Breach of contract claim in employment tribunal

£25,000

Failure to inform or consult: collective redundancy  (e)

90 days’ pay

Failure to inform or consult: TUPE transfer  (e)

13 weeks’ pay

…….

Key:

(a). To qualify for these payments, in addition to other criteria such as length of service, the employee must earn the same or more than the weekly lower earnings limit (“LEL”), which is set by the government. The LEL from April 2016 is £112.00 before tax.

(b). Only applicable to those under 19 or in the first year of their apprenticeship. For all other apprentices, refer to age bands.

(c). Maximum compensatory award is lower of statutory limit or 52 weeks’ actual gross pay at the time of dismissal. Limit does not apply where reason for dismissal or redundancy selection is carrying out health and safety activities or making a protected disclosure.

(d). Please see our guide to essential contracts.

(e). Calculated by reference to employee’s actual gross pay – the limit on a week’s pay does not apply.

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Time to share… Are you ready?


'Time to share...Are you ready'
SUMMARY: Our briefing note tells you how to get to grips with the basics on Shared Parental Leave.

What is the new Shared Parental Leave (“SPL”) regime?

SPL is a new legal entitlement for eligible parents of children due to be born on or after 5 April 2015, or who are placed for adoption on or after 5 April.  It gives both parents the opportunity to consider the best leave arrangements to care for their child during the child’s first year with their family.

Does SPL replace normal family friendly leave?

The entitlement to statutory maternity, paternity and adoption leave will remain. SPL is an optional entitlement which parents can choose to take.

In order to trigger SPL, the mother will however need to have curtailed or given notice to reduce their maternity/adoption leave (or pay/allowance if not eligible for maternity/adoption leave).

Do we have to offer SPL to all our staff?

The right to SPL is not automatic; a parent must satisfy stringent eligibility requirements and opt to take it.

Who is eligible to take SPL?

There are four elements to identifying who is eligible for SPL:

First element

The mother must:

  • have a partner;
  • be entitled to maternity/adoption leave; or to statutory maternity/adoption pay or maternity allowance; and
  • have curtailed, or have given notice to reduce, their maternity/adoption leave (or pay/allowance if not eligible for maternity/adoption leave).

Second element

A parent who intends to take SPL must:

  • be an employee.  A self-employed parent will not be entitled to SPL but if they pass the employment and earnings test (see below), their partner, if an employee, may still qualify for SPL;
  • share the primary responsibility for caring for the child; and
  • have properly notified their employer of their entitlement and have provided the necessary declarations and evidence.

Third element – the “continuity of employment test”

A parent wanting to take SPL must satisfy the continuity of employment test. This means that they must have been your employee for 26 weeks:

a)   at the end of the 15th week before the expected week of birth; or

b)   at the week of being matched with a child for adoption,

and remain in continuous employment until the week before he or she starts any period of SPL.

Fourth element – the “employment and earnings test”

The other parent/partner also needs to satisfy the employment and earnings test by:

a)   having worked for at least 26 weeks as an employee or a self-employed earner during the 66 week period leading up to the baby’s expected due date or child’s matching date; and

b)   earning an average of £30 per week (as at 2015) in any 13 week period during those 66 weeks.

When will we know if an employee wants to take SPL?

Parents do not have to choose to take SPL immediately on the birth/matching.  They have the option to request it at any time whilst they remain eligible to do so, and there is some untaken leave left to share. You would however be entitled to receive at least eight weeks’ notice – see below.

When and how must SPL be taken?

The legislation provides that:

  • SPL must be taken within one year of the birth/adoption; and
  • it can be taken as an unbroken period of leave (“continuous block”); or
  • it can be taken as separate periods of leave (“discontinuous block”). For example, the employee takes five weeks SPL, returns to work for four weeks and then takes a further five weeks SPL.

The distinction between continuous and discontinuous blocks of leave is important as this determines the nature of the employer’s response.

How much leave can be taken?

The total amount of SPL available depends upon the amount of statutory maternity/adoption leave that the mother or the primary adopter has taken and/or proposes to take – this is because the mother/primary adopter must cut short their 52-week entitlement which can either be done by:

  • returning to work early; or
  • giving a curtailment notice to their employer to end the statutory maternity/ adoption leave on a specific date.

The maximum number of weeks of SPL that can be made available is 50.

SPL can only be taken in blocks of complete weeks, i.e. not in blocks of less than seven days.

It is envisaged that SPL can be taken concurrently by the partner, while the mother is still on maternity leave as long as the relevant notice requirements have been satisfied.

Do we have to pay Statutory Shared Parental Pay (“SSPP”)?

The answer is yes.  SSPP is broadly the same as statutory maternity pay and can be paid for up to a maximum of 39 weeks (less any statutory maternity pay, maternity allowance or statutory adoption pay).

An employee who qualifies for statutory maternity pay, statutory adoption pay or statutory paternity pay and whose partner meets the employment and earnings test will be eligible for SSPP.

If both parents qualify for SSPP they must decide who will receive it, or how it will be divided, and they must each inform their employer of their entitlement.

How will we know if an employee wants to take SPL?

SPL can only be taken where the mother has:

  • already returned to work; or
  • given notice to reduce the statutory maternity/adoption leave and the date it will come to an end.

Before SPL can start you would be entitled to receive the following communications:

1.   Notice of entitlement

If an eligible employee intends to take SPL they must send you a notice of entitlement confirming that they want to opt to take SPL. This notice must include certain prescribed information such as how many weeks maternity/adoption leave will or has been taken, details of as how much SPL will be taken and when; a declaration from the employee and the other partner/adopter confirming that the statutory conditions are met must also be provided. At this stage the employee is only required to give you an idea of what they are considering and the leave dates do not have to be definitive.

The notice must be submitted at least eight weeks before the intended period of SPL.

The mother/primary adopter must provide their employer with the notice. Likewise, the father/partner must provide their employer with the notice.

2.   Curtailment notice

If the employee has not returned to work they must serve a curtailment notice in relation to statutory maternity/adoption leave to bring it to an end.

3.   Notice to claim SSPP

If an employee wishes to claim SSPP, they must also give notice at least eight weeks before they wish to start claiming it.  This notice can be included within the notice of entitlement.

4.   Notice to book leave

A notice to book SPL must be submitted in writing at least eight weeks before any period of SPL would begin.  This notice to book leave must set out the leave the employee intends to take specifying the start and end dates. Three periods of leave notice can be given, which can permit up to three separate blocks of SPL being taken.

This notice can be given at the same time as the notice of entitlement is provided.

This notice must be submitted at least eight weeks before the intended period of SPL.

Can we refuse requests for periods of SPL?

In short, the answer to this question will depend on whether the request relates to a continuous or discontinuous block of leave:

  • A request for a continuous block of leave must be accepted unconditionally, unless the employee agrees to a modification; there must in this case be evidence that such agreement has been freely given by the employee.
  • A request for a discontinuous block of leave could lead to three possible outcomes:

a)   the request is accepted unconditionally.

b)   a modified period for leave is agreed; and

c)   the request is refused without proposing alternative dates.

Employers should be mindful that there is a process for responding to requests particularly those relating to discontinuous blocks of leave and in some cases the default provisions may be triggered. For example, where the request is ignored, agreement is not reached or the request is rejected. The default provisions allow the employee to withdraw their request, which will then not be treated as one of the statutory three notices to book leave, or the leave will default to a period of continuous leave.

Does SPL have to mirror the organisation’s enhanced maternity scheme?

There is no statutory requirement for employers to create an occupational shared parental leave scheme, even if it offers an enhanced maternity scheme. If, however, you offer an enhanced maternity scheme we would recommend that you take legal advice as potentially not offering an enhanced SPL scheme may  give rise to a discrimination claim.

Do we need to allow the employee to return to work following SPL?

An employee’s right to return to work will be determined by the period of SPL taken:

  • If an employee returns to work following a period of SPL they are entitled to return to the same job if their combined leave period (comprising of maternity/paternity/adoption and SPL) totalled 26 weeks or less.
  • If an employee returns to work following a period of SPL where the number of weeks of maternity/paternity/adoption and SPL exceeds 26 weeks in total, or the total number of unpaid parental leave weeks exceeds four weeks, an employer must allow an employee to return to the same job unless it is not reasonably practicable to do so, in which case a suitable and appropriate job on terms and conditions no less favourable must be offered.

Are there any other considerations we need to be aware of?

The legislation does create additional rights and protection for those seeking to take or taking SPL. For example:

  • Terms and Conditions – During SPL an employee is entitled to benefit from all of their usual terms and conditions except for remuneration, i.e., wages.
  • Redundancy situations – If whilst on SPL an employee’s role becomes redundant, they must be offered any suitable alternative role, if available. This is the same right a mother on maternity leave has.
  • Detrimental treatment and dismissal – Employees are entitled not to suffer from a detriment or be dismissed for seeking to taking SPL.
  • “Shared Parental Leave In Touch Days” (“SPLIT days”) – An employee and employer can agree that the employee will attend  work for up to 20 SPLIT days.
  • Annual leave – Annual leave will accrue during SPL.

The Equality Act 2010 prohibits unlawful discrimination in the workplace on the grounds of a protected characteristic, which includes gender, sexual orientation, pregnancy and maternity. SPL therefore creates the potential for a discrimination claim. To minimise the risk, all requests for SPL must be handled fairly, consistently and in a non-discriminatory way to avoid such claims.

Should we introduce a SPL Policy?

Whilst there is no legal requirement for you to have SPL policy, we consider that it would be a matter of good practice for most employers to have one.  This will ensure that all SPL requests are dealt with consistently, all legal requirements are satisfied and the correct procedures, particularly where discontinuous periods of leave are sought, are followed.  It will also tell your employees how to apply for SPL and the minimum legal requirements they need to satisfy.

What do we do next?

If, having read our note, you have further questions or if you receive an application for SPL from a member of staff and you require some advice specific to that application, please contact us. We would also be happy to advise you.

We will however keep you updated with future updates on this knotty subject.

Please contact us on: fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.