Shared parental leave ‘could give rise to discrimination claims’

Shared parental leave regulations take effect on December 1. It will allow split leave of up to 52 weeks from the baby’s birth or adoption date, after April 5 2015.

Shared parental leave can be taken flexibly in up to three blocks by each parent. Both parents will receive statutory payments at the same level as basic maternity and adoption leave.

However, issues could arise over enhanced pay rights, Addleshaw Goddard partner Emma Whiting has warned.

Almost four out of 10 businesses offer enhanced maternity pay at a rate above the £138.10 statutory weekly payment.

Ms Whiting said: “In terms of shared parental leave, the government’s position is businesses don’t have to offer enhanced pay.

“Many clients are thinking ‘do we enhance?’ The vast majority are saying, no - not now. They’re watching closely because of the indirect discrimination issue.

“If you have a company that does offer enhanced maternity pay but statutory paternal leave, it might just breed discontent.”

The risk of direct discrimination claims is “very low”, Ms Whiting said, but indirect discrimination apply depending on the number of people who take up shared parental leave.

Anyone claiming indirect discrimination would have to be a member of a group that is disproportionately affected by the non-enhancement policy, such as men who have missed out on pay compared to women receiving higher maternity payments, Ms Whiting said.

Businesses should keep a clear paper trail regarding their decisions not to offer enhanced payments, she said.

Continuing to offer enhanced maternity pay and statutory parental leave could result in most women taking maternity entitlement rather than sharing the leave, Ms Whiting said.

The Government’s impact assessment suggested between two and eight per cent of parents were likely to take up shared parental leave. More people may be persuaded to use shared parental leave if it is paid along the same lines as statutory maternity, where the first six weeks is at 90 per cent of a woman’s earnings, Whiting suggested.

“If the Government did want to make the policy more impactful, that could be an option,” she added.