Shared parental leave sex discrimination claims

Can a man on Shared Parental Leave use a woman on Adoption Leave as a suitable comparator?

The Issue

The recent case of Price v Powys County Council (UKEAT/0133/20/LA) considers whether a man on Shared Parental Leave (ShPL) can use a woman on Adoption Leave (AL) as a comparator in a sex discrimination claim. 

The Facts

The Claimant in this case, a man, took ShPL as soon as his wife’s compulsory two week maternity leave ended.

The Claimant enquired about his rights under the Respondent’s ShPL Policy and found he was entitled to an amount equal to statutory maternity pay (SMP) rather than the enhanced amount offered for AL.

The Claimant brought a claim for direct sex discrimination in the Employment Tribunal (ET) arguing sex discrimination, comparing his position to that of a female employee on adoption leave (AL) who was paid more.

The ET dismissed his claim concluding that there were material differences between his circumstances and that of the female comparator, such as: AL could begin before placement, whereas ShPL could not and AL was an immediate entitlement on placement whereas ShPL was not.   

The Claimant appealed to the EAT on the basis that the predominant purpose of AL is for childcare, which is directly comparable to ShPL. Therefore a male taking ShPL should not be treated any differently from a female taking AL; both are about giving parents a choice in relation to childcare and one parent is taking on the primary responsibility for care of the child.

The EAT dismissed the appeal on the basis that the purpose of AL is different to ShPL as it goes beyond providing childcare alone and gives rise to additional challenges such as: bonding with the child and taking of steps to prepare and maintain a safe environment for the child.

Points to take away from the case

Adoption leave is materially different to ShPL. When considering a comparator there must be no material differences between the Claimant and the comparator. Material differences are those which are significant and relevant.