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Male Discrimination during Shared Parental Leave

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This was considered by the Employment Tribunal (ET) in the case of Snell v Network Rail Infrastructure Limited.

Mr and Mrs Snell were both employed by Network Rail and both applied under Network Rail’s Share Parental Leave Policy. Mrs Snell decided to take 27 weeks leave, with Mr Snell initially taking 12 weeks leave (although this was soon after changed to 24 weeks).

Under Network Rail’s “Family Friendly Policy,” mothers and primary adopters were entitled to take 26 weeks of SPL with full pay followed by 13 weeks statutory pay. In contrast, fathers or partners of the mother/primary adopter were only entitled to 39 weeks statutory pay followed by 13 weeks of unpaid SPL.

This was challenged by Mr Snell who raised a grievance on the grounds that the disparity in pay was indirectly discriminatory to fathers or partners of the mother/primary adopter. His grievance was rejected.

Mr Snell subsequently brought a claim for unlawful sex discrimination.

Although Network Rail accepted that Mr Snell had been indirectly discriminated, they sought to justify the terms of the policy on the grounds that it was designed to attract and retain female employees in a what was known to be, a male dominated workforce. However, Network Rail were unable to produce any evidence of this.

The Tribunal awarded Mr Snell almost £29,000. £6,000 for injury to feelings and £16,130 for future losses (which reflected the difference in pay between his normal weekly rate of pay and the statutory rate of pay for the period of 24 weeks), along with an uplift due to the failure in dealing with his grievance.

It is worth noting that this case only dealt with remedy rather than determining whether it was considered to be discriminatory to pay enhanced pay to a woman on maternity leave but not a man who takes shared parental leave. In addition, the Tribunal awarded Mr Snell for his future losses on the basis that he should have received full pay for the full 24 weeks. This did not take into account that by the time Mr Snell planned to commence his period of SPL, Mrs Snell had already exhausted her entitlement to SPL at the full rate of pay. The policy had failed to expressly mention a single pot of enhanced pay.

This case serves a useful reminder of the considerations employers are required to take into account when drafting policies and family friendly ones in particular. Shared Parental Leave has caused much confusion and unanswered questions since its introduction. The key is to draft your policies carefully and clearly. Since this decision, Network Rail have reviewed their policy and reduced the amount of pay available to statutory pay for both mothers and fathers.