23rd April 2021

Direct Sex Discrimination Comparators: Shared Parental Leave v Statutory Adoption Leave. Comparing apples with… oranges and pears.

Maternity rights and parental leave are a fundamental part of employment law. They provide new parents of either birth or adoptive children with paid leave to spend time with their new bundle of joy.

On 31 March 2021, the Employment Appeal Tribunal (EAT) handed down its judgement in the case of Price v Powys County Council UKEAT/0133/20/LA (V) (‘the Price case’). The Price case concerns Shared Parental Leave (SPL) and Statutory Adoption Leave (SAL). The key issue, in this case, was not the paid leave itself but whether paying a male employee on SPL less than a female employee on SAL constituted direct sex discrimination.

Direct discrimination occurs where, because of a protected characteristic (such as someone’s sex), A treats B less favourably than A treats or would treat others. In direct discrimination cases, an employee must provide a comparator and there must be no material differences between the employee’s circumstances and those of their comparator (apart from of course the different protected characteristic). Bearing this in mind, let’s take a look at the Price case.

The facts
Mr Price was employed by Powys County Council and discovered that his wife was pregnant with their first child. He and his wife decided to take SPL and Mr Price queried the amount he would receive for 37 weeks of such leave. He was advised by his employer that, as per their policy, he would be paid an amount equal to Statutory Maternity Pay (SMP). Mr Price therefore chose not to proceed with his application for SPL.  As a brief recap, SPL allows the mother (biological or otherwise) to “share” some of her Statutory Maternity Leave (SML), with the father (or partner etc).

Mr Price viewed his employer’s policies as discriminatory as employees taking SML and SAL would receive more pay than those being paid SPL (this was because the Council made enhanced payments to those on SML and SAL, whereas those on SPL were only paid statutory minimum rate). He therefore raised a direct sex discrimination claim in the Employment Tribunal (ET). Mr Price provided two comparators: (1) a female employee on SML receiving enhanced maternity pay and (2) a female employee on SAL receiving enhanced adoption pay. His principal argument was that the main purpose of SPL and SAL was the provision of childcare.

When the claim was heard by the ET in September 2019, the case was dismissed on the basis that there were material differences between the comparators’ circumstances (the female employees on SML and SAL) and Mr Price’s own circumstances. In relation to SPL and SAL, the ET noted a number of reasons as to why there were material differences, such as the fact that SAL was partly compulsory while SPL was optional and SAL was an immediate entitlement on placement, whereas SPL was not.  The ET also held that the provision of childcare was not the main purpose of SAL. Mr Price’s claim was therefore dismissed by the ET.

The decision of the EAT
Mr Price appealed to the EAT who dismissed his appeal, agreeing that the main purpose of SAL goes beyond the provision of childcare. With reference to SAL, the EAT noted that adoption cases include forming a parental bond, becoming a family and taking steps to prepare and maintain an appropriate and safe environment for the child. These reasons allowed the EAT to conclude that SAL is materially different to SPL and so Mr Price was unable to use this as a comparator for the basis of his direct sex discrimination claim.

This case gives further guidance as to the “material difference” concept on the issue of comparators in direct sex discrimination cases. This case also further demonstrates the difficulties for men only being paid statutory rates when taking SPL, being able to compare themselves with women receiving enhanced payments for other types of family leave (the Court of Appeal reached a very similar conclusion in the case of Ali v Capita Customer Management Ltd).

If you need any advice regarding discrimination matters, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Blythe Petrie, Trainee Solicitor
Employment Law
Blackadders LLP


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