Sarah Gilzean

In Price v Powys County Council, the Employment Appeal Tribunal (EAT) has dismissed an appeal in a sex discrimination claim by a male employee who argued that he could compare his treatment on shared parental leave with a woman on adoption leave.

The claimant and his wife jointly agreed that he would stay at home to care for their newborn baby while his wife would return to work. The claimant’s employer, Powys County Council (the respondent), had a policy on shared parental leave which stated that employees taking such leave would receive an amount equivalent to statutory maternity pay. By contrast, employees that took adoption leave were entitled to full pay.

In arguing his case of discrimination on the basis of sex, the claimant compared his circumstances to that of a female employee on adoption leave and claimed that the respondent’s policy gave rise to direct sex discrimination. The ET dismissed the claim concluding that material differences existed between the circumstances of someone on adoption leave and someone on shared parental leave, rendering the claimant’s chosen comparator inappropriate.

The EAT considered the relevant provisions of Paternity and adoption leave Regulations 2002 (“adoption leave Regulations”) and those of shared parental leave Regulations 2014 (“Shared Leave Regulations”).  The EAT found that there were key differences between the two types of leave:

• adoption leave could commence before a child’s placement, whereas shared parental leave could not.
• adoption leave is an immediate entitlement upon placement whereas shared parental leave is not. The EAT stated that it is a material difference underlining the need for an adopter to have time at the commencement of the placement to prepare and maintain a safe and stable environment for the child and to develop a parental bond.
• shared parental leave can only be taken with the partner’s agreement to give up adoption leave.
• shared parental leave must be taken within 52 weeks of the placement and that within the period it could be “dipped in and out”. The EAT noted that this flexibility in relation to shared parental leave is consistent with the purpose of giving parents (whether birth or adoptive) greater choice when it comes to childcare responsibilities. Such leave is consistent with its purpose, which, in the EAT’s view, extends beyond childcare.

The EAT therefore concluded that adoption leave is materially different to shared parental leave and, as such, it found that there was a material difference between the circumstances of the claimant and his comparator. The EAT confirmed the tribunal’s findings that a more appropriate comparator would be a female on shared parental leave. In such a case, the female comparator would receive the same pay under the shared parental leave policy as the claimant and accordingly, there was no prima facie case of sex discrimination.

Sarah Gilzean is a senior associate at Morton Fraser