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Tribunal finds that offering basic paternity pay but enhanced maternity pay is not discrimination

In Shuter v Ford Motor Co Ltd, Mr Shuter worked for Ford, who offered maternity leave up to 52 weeks at full pay. Mr Shuter took 26 weeks’ additional paternity leave, and was paid the statutory minimum at the time (£136.78 per week). Mr Shuter raised claims of direct and indirect sex discrimination. In relation to the direct discrimination claim, the Tribunal found that there was no direct discrimination, as he was treated in the same way as a woman who was taking additional paternity leave (e.g. as the spouse or civil partner of the mother).

Mr Shuter argued that Ford had a policy of “paying women basic pay when on leave beyond 20 weeks after the birth of the child when looking after the child” and that this was indirectly discriminatory. It was accepted that this policy was indirectly discriminatory, but Ford were able to justify the discrimination on the basis that the policy was aimed at recruiting and retaining women in its workforce. In this instance, Ford produced statistical evidence that it had a low proportion of women in the workforce, and that the introduction of enhanced maternity pay had increased the number of female employees.

While additional paternity leave is due to be abolished shortly, this case will be useful to employers in relation to the introduction of shared parental leave which is due to come into force in December this year. It has been suggested that offering enhanced maternity pay, but only offering statutory minimum shared parental pay, could constitute sex discrimination. This contention is not new and was raised when additional paternity leave was first introduced. There was however a general opinion that there is no sex discrimination because the father receiving statutory minimum is in the same position as a female spouse or civil partner of the mother; an opinion which had not been tested in the courts until now. It is worth noting that this decision is only an employment tribunal decision and so may be overturned on appeal, and also that Ford produced statistical evidence to justify their policy as being aimed at recruiting and retaining female employees. However, this first case on this area is a good indication for employers who plan to offer enhanced maternity, but statutory minimum shared parental pay.

 

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