The Employment Appeals Tribunal (EAT) have confirmed that an employer did not discriminate against a male employee by paying enhanced adoption pay but not enhanced shared parental pay.
The employee alleged that this policy amounted to direct sex discrimination, as it would result in a male employee on Shared Parental Leave (SPL) receiving less pay than a female employee on statutory adoption leave (SAL).
In order to claim direct sex discrimination, an employee needs to show that, because of their sex, they have been treated less favourably than a comparator. This comparator can be a real or hypothetical person, but their circumstances cannot be materially different from those of the employee making the claim.
In their judgment, the EAT held that a female employee on SAL was not an appropriate comparator for a male employee on SPL as their circumstances were materially different.
In reaching this conclusion, the EAT found the purpose of the two types of leave was very different. They found SPL was aimed at facilitating childcare and allowing parents greater flexibility in how they arrange this. In contrast, SAL allows the adoptive parents time to form a parental bond with the child and give them the opportunity to create and maintain a safe environment for the child.
The EAT also held the two types of leave operate differently. SAL is an immediate entitlement on placement of the child, can only be taken in one continuous block, and could begin before the child was placed. SPL by comparison can be taken in up to three blocks and has different rules regarding entitlement to the leave.
The correct comparator in this case was a female employee on SPL. They would have received the same pay as the male employee on SPL, meaning there was no difference in treatment and therefore no direct sex discrimination.
The case will do little to encourage the already low uptake of SPL (indeed, the employee in this case chose not to take SPL due to the difference in pay), but will provide clarification for employers that such a policy will not give rise to a discrimination claim.