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Sex discrimination based on unequal paternity/maternity pay

Whilst on the subject of parental leave and pay, it’s worth taking a moment to look at a recent discrimination case brought under the Equality Act 2010.  Additional paternity leave is to be abolished under the SPL system, but the following ruling could still be relevant to the new regime.  
In the case of Shuter v Ford Motor Company Ltd, the employer successfully resisted a sex discrimination challenge based on its different rates of pay for maternity and paternity leave. 
The employer held that Ford did not discriminate by paying the statutory minimum rate of additional paternity pay to a male employee on additional paternity leave (APL), whilst offering its female employees enhanced maternity pay (in the form of granting up to 52 weeks at their full basic pay).
The Tribunal found that there had been no direct discrimination against Mr Shuter on account of his sex, as he was treated in the same way as a woman in his position- that is, a woman taking additional paternity leave as the female spouse or civil partner of a mother.
However, on Mr Shuter’s indirect discrimination claim, the ET held that the policy of paying full pay to women on maternity leave 20 weeks after the birth of the child (the point at which fathers or partners would be eligible to commence APL) whilst only offering the statutory rate of APL did have a more detrimental impact on men than women.
Treatment that puts a person at a disadvantage in terms of the 2010 Act’s indirect discrimination provisions only becomes “discriminatory” if the employer “cannot show it to be a proportionate means of achieving a legitimate aim.”
Employers should look beyond the headlines in this particular case, and note that Ford only prevailed because it was able to defend its position with reasoning and evidence.  This is only a Tribunal decision, so it may be subject to appeal.
The Balfour+Manson team regularly advises on discrimination issues under equality legislation. If you have a query, get in touch with our team.  
For further information or to discuss any issues relating this article, please contact Robert Holland or any of the Employment team at Balfour+Manson.
Disclaimer: The views and opinions expressed in this article site are soley those of the original authors and other contributors and do not purport to give specific legal advice.
Also in this month’s employment law MATTERS:

Holiday pay

The upcoming introduction of shared parental leave

The latest Tribunal case on a Facebook-related dismissal

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