Parental leave: no sign yet of share and share alike

In a recent Employment Tribunal in Scotland a working father was awarded £28,321 by Network Rail as a result of their discriminatory shared parental leave policy. While Shared Parental Leave (SPL) drew attention when it was introduced, uptake has been limited. By allowing parents to share their maternity, paternity and adoption leave, employers have had to rewrite their policies based on a complex piece of legislation.

Pam Loch

The Employment Tribunal found Network Rail’s parental leave policy was indirectly discriminatory against fathers by reinforcing stereotypes that mothers are the primary carers. It was unequal in respect of Shared Parental Pay (SPP). Employees who were fathers would always get less than mothers.

Network Rail also failed to deal with the employee’s grievance raised over the shared parental leave policy in a timely or correct manner and comply with the ACAS Code on Grievances. The tribunal took the view that this caused further distress to the employee resulting in almost £9,000 being added to the total award for injury to feelings and the employer’s failure to follow a proper grievance process.

This decision highlights how important it is for an employer to take grievances seriously. Essentially, by being complacent about the original grievance and not following the correct procedures Network Rail failed to nip the complaint in the bud.

Network Rail has subsequently changed its shared parental leave policy “to ensure fairness” by reducing women’s maternity pay to the statutory level in line with the entitlement for partners whilst on shared parental leave. Ironically, part of Network Rail’s justification for paying different levels was to help retain female employees in a male-dominated industry. The tribunal outcome and decision to reduce the pay level for mothers could clearly have a detrimental impact on retaining female staff.

A 2016 survey by My Family Care one year after the introduction of SPL found less than 1 per cent of male employees were taking up SPL. Why? Don’t working fathers want to share leave for fear it may affect their career? Or is it affordability? SPP has to be financially viable for working families, so employers must provide equally for expectant male and female employees. If both parents are offered their normal full pay for SPP, as opposed to statutory, SPL could be an attractive alternative to maternity and paternity leave. The My Family Care survey found 80+ per cent of men and women agreed or strongly agreed finances were the primary factor when deciding on sharing leave.

While reviewing policies, employers should consider possible changes from the government announcement to extend shared parental leave and pay to working people caring for grandchildren aged under one.

SPL remains very confusing for both employers and employees and ultimately has not been taken up at the levels anticipated. The Network Rail case highlights how careful employers need to be when creating policies in this area and also how important it is to deal with grievances properly.

Pam Loch is Managing Partner, Loch Employment Law and Managing Director, Loch Associates Group.