In Shuter v Ford Motor Co Ltd ET Case No.3203504/13 an employment tribunal has held that an employer did not discriminate by paying only the statutory rate of additional paternity pay to a male employee on additional paternity leave (APL) when a female employee on maternity leave would have been entitled to full basic pay. There was no direct discrimination because the appropriate comparator was a woman who had also taken APL, who would have been treated in the same way. Although the policy was indirectly discriminatory, it was objectively justified by the need to recruit and retain women in a male-dominated workforce.
Under the APL scheme, introduced in 2011, the father (or female partner of a mother) can take up to six months’ leave consequent on the mother returning to work. The earliest that the father can take such leave is 20 weeks after the birth of the child and the right expires on the child’s first birthday. The father is also entitled to take the equivalent of any maternity pay ‘unused’ by the mother which, in practice, is a maximum of 19 weeks at the basic rate of £138.18 per week.
FMC Ltd operated a maternity policy that gave women on maternity leave full pay for up to 52 weeks. Its policy on APL was to pay only the statutory rate. S took 20 weeks of APL and was paid accordingly. While on leave he brought claims of direct and indirect sex discrimination. He argued that the difference in treatment between him and a mother on maternity leave meant that was paid around £18,000 less for an equivalent period of leave.
For the purpose of his direct discrimination claim, S sought to compare himself with a female employee on maternity leave, who would have been entitled to full pay throughout. The tribunal considered that this was not a valid comparison – the correct (hypothetical) comparator was a woman who had also applied for APL (i.e. a female spouse or civil partner), who would have been treated no differently. The tribunal also rejected S’s more nuanced argument that he could compare himself with a mother on maternity leave 20 weeks after the birth of the child. He submitted that the introduction of APL reflected Parliament’s view that, after 20 weeks, maternity leave is no longer aimed at protecting the mother but at facilitating childcare, which can be undertaken by either parent. The tribunal disagreed. It could not accept that Parliament intended to change the character of maternity leave in this way. In its view, the father’s right to APL is dependent on the mother choosing to return to work, which is a decision personal to her. Thus, there remains a material difference in circumstances between the mother and the father even at this later stage. For completeness, the tribunal went on to note that if it had found that there were a relevant difference in treatment, it would have held that it fell within S.13(6)(b) of the Equality Act 2010, which allows for more favourable treatment in connection with preserving the health and safety of the mother following pregnancy.
As for indirect discrimination, the tribunal accepted that the relevant ‘provision, criterion or practice’ for the purpose of S.19 EqA was FMC Ltd’s policy of paying full pay to women on maternity leave 20 weeks after the birth of the child. FMC Ltd conceded that, on this formulation, the relevant group disadvantage was established and so the tribunal moved straight on to consider objective justification. It held that FMC Ltd’s objective in paying full pay throughout maternity leave was to recruit and retain women, which was clearly legitimate. It was also satisfied that the policy was proportionate. In so finding, the tribunal had regard to the fact that the overall number of women in the workforce had increased, including in professional and senior management grades. It therefore dismissed the claim.