314: No discrimination for different pay to a man on parental leave and a woman on adoption leave

In Price v Powys County Council, the EAT has upheld an Employment Tribunal’s decision that paying a man on shared parental leave (SPL) less than a woman on statutory adoption leave (SAL) did not amount to sex discrimination.

Under Powys County Council’s ‘Supporting Working Parents Policy’, employees on statutory maternity leave (SML) or SAL were paid enhanced maternity or adoption pay. However, employees taking SPL were entitled to basic statutory shared parental pay only.

Mr Price brought a claim in the Employment Tribunal alleging that it was direct sex discrimination for the Council to pay employees on SML and SAL more than employees on SPL. However, following the reasoning in the Court of Appeal’s decisions in Ali and Hextall, the Tribunal found that there were material differences between Mr Price and his two chosen comparators, a woman on SML and a woman on SAL. The Tribunal held that the correct comparator was a female employee on SPL. Since a female employee on SPL would have received the same pay as Mr Price under the Council’s policy, there was no direct sex discrimination.

On appeal, Mr Price argued that the Tribunal was wrong to reject his second comparator, a woman on SAL, since the underlying purpose of both SAL and SPL is the facilitation of childcare. The EAT disagreed, ruling that SAL and SPL have materially different purposes. Whilst the main purpose of SPL is the facilitation of childcare, the purpose of SAL goes beyond this to include enabling the formation of a parental bond and preparing and maintaining a safe environment for the child. A further material difference is that SAL can begin before the child’s placement with adopters, whereas SPL can begin at any stage during the child’s first year and can be taken in blocks.

Subject to any appeal, this decision is consistent with previous case law and provides clarification for employers that offering enhanced adoption pay but only statutory pay for SPL will not give rise to successful direct sex discrimination claims. It also illustrates why take up of SPL in most workplaces remains very low.