In a recent Employment Tribunal case in Scotland, a father was awarded over £28,000 compensation after his employer’s Family Friendly Policy was held to be discriminatory.
Mr Snell and his wife both worked for Network Rail and opted to take shared parental leave to care for their baby. The couple decided that Mr Snell’s wife would take 27 weeks leave, and Mr Snell would take 12 weeks’ leave (he later applied to extend his period of leave up to 24 weeks). Under their employer’s policy, Mr Snell’s wife would be paid full pay for 6 months, whereas he, as her partner, would only receive statutory shared parental pay of £139.58 per week.
Mr Snell raised a grievance arguing that he was being discriminated against on the basis of his sex because mothers received enhanced parental pay whilst fathers only received the statutory rate. Network Rail rejected the grievance. They argued that their policy applied equally to a mother’s partner regardless of whether they were male or female, and they believed that by paying the statutory amount they had met their legal obligations.
Mr Snell brought claims for direct and indirect discrimination in the Employment Tribunal. Network Rail argued that the correct comparator for Mr Snell was a female partner of a mother, who would also receive the statutory rate of pay under their policy. They also argued that even if their policy did put Mr Snell at a particular disadvantage because of his sex, it could be objectively justified as a way of helping them recruit and keep more female staff in a male dominated workforce.
By the time the case came before the Tribunal, Network Rail conceded that their policy had indirectly discriminated against Mr Snell in relation to his sex, so the Tribunal only had to determine how much compensation he should be awarded (Mr Snell had withdrawn his claim for direct discrimination).
Mr Snell’s total compensation of £28,321.03 included elements for: injury to feelings, future loss, interest, pension loss and his Tribunal fees. Some elements of the compensation were increased by 20% in light of Network Rail’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures i.e. failing to arrange meetings or to communicate the outcome of meetings to Mr Snell without unreasonable delay.
The Tribunal also took into account, when assessing how much Mr Snell should be awarded for injury to feelings, the delays on the part of Network Rail in dealing with his grievance and the fact that his not being able to finalise child care arrangements put him under considerable stress at a time when his wife was ill and in hospital.
There are lessons that can be learnt from how Mr Snell’s grievance was handled. Mr Snell’s manager had no previous experience of Network Rail’s grievance procedure, and had received no training on the Family Friendly Policy or on discrimination and diversity issues. There were also delays arising from communication with Network Rail’s external HR support, including about who should hear the grievance.
Many employers have traditionally paid mothers enhanced maternity pay, whilst paying paternity pay at the statutory rate and continue to pay maternity pay at a higher rate than shared parental pay. Whilst the Tribunal’s decision in Mr Snell’s case is not a binding one, it highlights some of the issues that can arise when shared parental pay is paid to mothers at a different rate to their partners (see our previous article here for a discussion on some of the issues around parental pay). The case also highlights some of the potential pitfalls for employers to be aware of when applying their family friendly policies and when dealing with any related grievances.
The Tribunal was informed that Network Rail has since changed its policy to ensure fairness, by “levelling down” the mother’s entitlement to the statutory rate of pay, although this was probably not the approach the government had in mind when shared parental leave was introduced to encourage parents to share childcare responsibilities. As we previously reported, the take up of shared parental leave has, not unexpectedly, been low and the lack of enhanced parental pay is likely to be a factor in this especially when many employers still pay an enhanced rate of pay to mothers on maternity leave.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).