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Case Law

The rate of pay for shared paternity leave

Not paying enhanced paternity pay was not discriminatory.

Shuter v Ford Motor Company Ltd | 2014

The facts

Mr Shuter’s wife gave birth on 25 December 2012. She took maternity leave until 15 July 2013. Mr Shuter then took additional paternity leave until 6 December 2013.

Mr Shuter was paid statutory paternity pay. Ford’s maternity policy, however, provided for up to 52 weeks’ full basic pay.

Mr Shuter brought a claim for direct and indirect discrimination, claiming he should also have been paid full basic pay.

The decision

The employment tribunal rejected both claims:-

  • direct discrimination. The employment tribunal decided Mr Shuter was treated no less favourably than a female employee who took additional paternity leave, who the employment tribunal concluded would also have received statutory paternity pay.
  • indirect discrimination. The only issue for the employment tribunal was whether Ford could justify its PCP i.e. whether it was a proportionate means of achieving a legitimate aim. Ford had conceded, for example, that men were more likely to be disadvantaged. The employment tribunal accepted Ford’s arguments that its maternity policy promoted recruitment, retention and development of women in Ford; that it would have been disruptive and costly if additional paternity leave was paid at full basic pay (due to increased demand) and had equality been required then it would have reduced maternity pay undermining its objective.

In practice

This is an employment tribunal decision so isn’t necessarily determinative of how future matters will be decided but perhaps gives a possible steer. It also is not binding on whether employers must (or must not in this case) pay shared paternity leave at an equal rate to maternity leave when it comes in next year. This is an area to watch as the new shared maternity leave rights come into effect in April 2015.

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