The introduction of the Shared Parental Leave Regulations 2014 has given eligible parents more flexibility as to how leave can be taken after the birth or adoption of a child. Shared parental leave (SPL) enables mothers to share up to 50 weeks’ maternity leave and 37 weeks’ pay with their partner so that both parents are able to keep a strong link to their workplace. However, the Regulations only require that employees taking SPL are paid at the statutory rate, which is currently £139.58 per week, or 90 per cent of the employee’s average weekly earnings, whichever is lower.

There is no statutory requirement for employers that offer enhanced maternity rights to women on maternity leave to ‘mirror’ those arrangements for employees who opt to take SPL. However, guidance produced by the Government – ‘Employers’ Technical Guide to Shared Parental Leave and Pay’ – stresses that if an occupational scheme is offered to a mother on shared parental leave, it could constitute sex discrimination if the same rights are not afforded to fathers or a mother’s partner. That point was at issue in the recent case of Snell v Network Rail Infrastructure Limited.

David Snell and his wife both worked for Network Rail and planned to take advantage of the SPL provisions after the birth of their baby in January 2016. Mrs Snell intended to take 27 weeks’ leave and Mr Snell proposed to take the next 12 weeks.

When Mr Snell discovered that, under Network Rail’s SPL policy, his wife would receive full pay for 26 weeks whilst on leave whereas he would only be paid statutory shared parental pay, he raised a grievance with his employer on the ground that he was being discriminated against because of his sex. Network Rail failed to comply with the time limits specified in its grievance policy, which prompted Mr Snell to write to his manager complaining that the delay was causing him and his wife considerable stress and the uncertainty meant that they were unable to make care arrangements for their baby. In the event, his grievance was eventually dismissed and he proceeded with an Employment Tribunal (ET) claim for indirect sex discrimination.

Initially, Network Rail intended to contest the claim on the basis that its policy could be justified as being a proportionate means of achieving a legitimate aim, which was to recruit and retain more female staff in what was predominantly a male workforce. It later changed its mind and, before the hearing took place, changed its SPL policies so that mothers and their partners taking SPL are now both paid only the statutory rate.

The ET awarded Mr Snell a total sum in compensation of £28,321.03. This included an award of £5,000 for injury to feelings on account of the stress caused because of Network Rail’s delay in completing its grievance procedures in a timely fashion, uplifted by 20 per cent as this was an unreasonable failure to follow the guidance set out in the Advisory, Conciliation and Arbitration Service Code of Practice on Disciplinary and Grievance Procedures.

This decision was at ET level and is not therefore binding. Furthermore, Network Rail’s arguments in justification of its SPL policy were not tested. However, employers are advised to review their own SPL and maternity policies. Where the treatment of men and women is different, can this be objectively justified if challenged? Also, the question of whether it is discriminatory to pay a woman opting to take maternity leave an enhanced rate of maternity pay but those choosing SPL the statutory rate of shared parental pay has yet to be tested.