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Failing to share parental leave appropriately can lead to an unequal pay claim; in a recent case a father was awarded almost £30,000 after Network Rail refused to pay him what they would have paid the mother during shared parental leave.

The problem arises because if an employer enhances maternity pay for a woman but does not do so for a man then it may be indirectly discriminatory. This was the case with Snell v Network Rail where Network Rail had been prepared to enhance Shared parental leave pay for the wife but not for her husband. In the event they conceded indirect discrimination and the Tribunal awarded the father £30,000.

Current thinking is that if shared parental leave is offered at statutory rates to both partners, then this will be acceptable. In those circumstances, the mother agrees to forgo her maternity rights (and therefore any enhanced pay) and they both take shared parental leave at statutory rates.

It is worth noting that Network Rail did not take this route (as they would have given the mother full pay during shared parental leave).

However there is a risk for an employer in asking a mother to forego enhanced pay as a condition of taking shared parental leave. Such an action may yet be challenged on the basis that it would discourage the sharing of early childcare, which the legislation was intended to promote.

However this would create another uncertain issue. Suppose you employ the father, and the mother is an employee of another company. If that other company is required to pay shared leave at an enhanced rate (by legislation), will you be obliged to pay the father at the same enhanced rate? Or should you pay just statutory parental leave rates and the enhanced portion be paid by the other employer?

Employers who offer enhanced maternity pay, but not enhanced shared parental leave pay, (apparently lawful to do so at this time) need to watch this space.