Maternity Leave versus Shared Parental Leave

by Laura McManus

In April 2015 the Work and Families (Northern Ireland) Act came into full legal effect, bringing with it the concept of shared parental leave and pay. This allows eligible new parents to share 52 weeks parental leave and 39 weeks parental pay. It is important to note that shared parental leave is not the same as maternity leave. In order to avail of shared parental leave, a mother must formally withdraw her claim to maternity leave and instead apply for shared parental leave, which she can then share with her partner for up to 50 weeks. Shared parental pay is payable for up to 37 weeks. The key definition is shared parental leave as opposed to maternity leave or paternity leave. Each of these definitions represents a different entitlement and therefore, should be governed by different policies. It is essential that when drafting respective maternity leave, paternity leave and shared parental leave policies, employers properly consider the wording and implication of each of these policies.

At the time the Work and Families (Northern Ireland) Act (together with its counterpart legislation in GB) was introduced, there was much discussion as to whether or not it could or would give rise to a raft of indirect sex discrimination cases for employers who offered enhanced maternity leave, but did not plan to offer enhanced shared parental leave. The case of Snell v Network Rail Infrastructure Limited (S4100178/2016) came before the Employment Tribunal in Scotland in July 2016, with the judgment being issued to the parties in August 2016. Whilst the decision is not binding, it is one of the first cases on shared parental leave and therefore, it has been widely reported and commented upon. In this case, a mother and father worked for the same company and applied for shared parental leave. The company offered an enhanced shared parental pay to mothers on shared parental leave, however they did not offer an enhanced shared parental leave package to fathers or partners and they were only entitled to statutory shared parental pay. The Claimant (the father) made an application to the Tribunal that this amounted to indirect sex discrimination and when the case came to Hearing, the employer conceded that the policy amounted to indirect sex discrimination. As the employer had made this concession, the case was not fully heard and other issues raised during the course of the hearing were not argued, therefore the Tribunal did not give a full judgment on all the issues raised.

In order to ensure that employers do not inadvertently discriminate against their workers, they must ensure that their policies and procedures for new parents are correctly drafted. An employer must also be clear on what the aims of any such policy are, so that in the event they are accused on indirect discrimination, they can be clear on their legitimate aim, which may serve as justification for their actions.

Having clear and coherent policies and procedures will be particularly important in the future, as the Government (pending the General Election) plans to introduce a scheme of Grandparents’ Shared Parental Leave from 2018, which could add further difficulties for employers when ensuring that their policies do not inadvertently discriminate against one party or another.

This article does not constitute legal advice, however, should you wish to review your company’s policies and procedures, contact Laura McManus on 028 90 244 602 or lauram@napiers.com

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