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Is the law driving forward fathers’ rights or stalling them?

BY Lorna Gemmell
Employment Law & HR
BG Purple

As the law stands, a mother can transfer part of her maternity leave/pay (after the baby turns 20 weeks old) to the father or to her partner. This is known as Additional Paternity Leave and is generally paid at a statutory rate.

It has had a very low take-up (0.8% in 2011/12 and 1.4% in 2012/13) and, as a result, it hasn’t been the subject of many Employment Tribunal claims. 

The recent case of Shuter v Ford is therefore something of a groundbreaker in this area. Mr Shuter raised a sex HR claim against his employer because, despite offering female employees up to 52 weeks’ basic pay for maternity leave, it only offered statutory pay to employees on APL. 

The Employment Tribunal rejected Mr Shuter’s claim. In dealing with the direct sex HR allegation, the Tribunal noted that the appropriate comparator was a female partner of the mother on APL. It was not, as Mr Shuter argued, a female employee on maternity leave following the 20 week mark. As the female partner of the mother would have been treated in the same way as Mr Shuter, there was no direct HR. 

Turning to the indirect sex HR allegation, Ford accepted that its policy regarding payment for APL indirectly disadvantaged male employees. However, it argued that the policy was justified. It claimed that if it offered enhanced pay for APL, this would result in a higher take-up of APL among male employees which would have been unsustainably disruptive and costly. The knock-on effect would be that Ford would be forced to reduce its industry-leading maternity benefits which would have a negative impact on its aim of recruiting, retaining and developing female employees. The Tribunal was convinced by that argument. 

A word of caution….this case does not create any blanket rules. The facts of this case were very specific and the Tribunal was no doubt influenced by the fact that Ford’s workforce was male-dominated and that offering enhanced maternity pay was one of the steps that Ford had taken to try and redress the imbalance. In any event, this is only an Employment Tribunal judgment and is not binding on other Tribunals.  

This case is of particular interest given the introduction of shared parental leave next year and the current debate regarding whether it should be paid at enhanced rates if an employer currently offers enhanced maternity pay. We’ll be discussing this thorny issue and many more at our Employment Law Masterclasses in November. 

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