We enhance maternity pay; do we need to enhance shared parental pay?

There is now conflicting case law on this.

Since the introduction of shared parental leave, there has been a concern that failing to enhance shared parental pay (if you enhance maternity pay) could be discriminatory.

The government's view (in their Employer's Technical Guide to Shared Parental Leave and Pay) is that offering enhanced shared parental pay is entirely at your discretion.

But this is not definitive.

What are tribunals saying?

To date, there have been two employment tribunal decisions. Unhelpfully, they reached different conclusions.

• The first found that enhancing maternity pay, but only offering shared parental pay at the statutory rate was not discriminatory (Hextall v Chief Constable of Leicestershire Police).
• The second found that this practice was discriminatory. In fact, it found that it was 'direct discrimination' meaning there was no scope for the employer to try and justify its position (Ali v Capita Customer Management Ltd).

So, unfortunately, we are left without a clear answer. Both cases are being appealed, so ultimately there should be more clarity, but this could take some time.

What should we do for now?

If you offer enhanced maternity pay, but don't want to enhance shared parental pay (for mothers or fathers) at this stage, you need to be aware that there is a potential risk in this approach.

If you are prepared to accept that risk for now, at least ensure that you document your reasoning. Although not certain, there may be scope to justify your decision if challenged, and to do so you would need evidence that your approach was a proportionate means of achieving a legitimate aim. Get in touch if you want to discuss this.

Importantly, keep an eye on our blog or Workbox for future developments, especially appeal decisions in the above cases. Workbox users can also access detailed information on shared parental leave and pay, along with a template policy and full suite of shared parental leave forms.

What if we decide to enhance shared parental pay?

If you are considering enhancing shared parental pay, think carefully about how you design your scheme, including how payments interact with enhanced maternity and paternity pay. To avoid discrimination, you should offer any enhanced shared parental pay on equal terms to both men and women.

If you want to discuss your particular circumstances or level of risk, please contact us.