In Price v Powys County Council, the Employment Appeal Tribunal (‘EAT’) were asked to rule on whether a male employee on Shared Parental Leave (‘SPL’) could compare their pay to a female employee on Adoption Leave for the purposes of a sex discrimination claim. The result was that the EAT upheld the Employment Tribunal’s decision that this was not a valid comparison and that there is no sex discrimination where an employer pays a man on shared parental leave less than a woman on adoption leave.
Direct sex discrimination occurs where, because of sex, a person (A) treats another (B) less favourably than A treats or would treat others. In the context of employment, an employee claiming direct sex discrimination would need to show that they have been treated less favourably than a real or hypothetical comparator; that is, a member of the opposite sex whose circumstances are not materially different to theirs (Section 23 Equality Act 2010).
The decision in Price v Powys County Council
Mr Price, the Claimant, was employed by Powys County Council. Mr Price and his wife were expecting their first child and, in anticipation of this, he decided to take SPL as soon as his wife’s compulsory maternity leave had ended. Mr Price asked the Council how much he would be paid for 37 weeks of SPL. The Council eventually confirmed that he was only entitled to the equivalent of statutory maternity pay. Mr Price brought a claim for direct sex discrimination to the employment tribunal, on the basis that he would be paid less than female comparators.
Mr Price identified two possible comparators:
- A female employee on statutory maternity leave (‘SML’) receiving maternity pay
- A female employee on statutory adoption leave (‘SAL’) receiving adoption pay
The employment tribunal dismissed his claims.
Applying the judgment of the Court of Appeal in Ali, the tribunal rejected the first comparator and held that Mr Price’s position was materially different to that of a woman on SML. The second comparator was rejected on the same basis, albeit there being more similarities between Mr Price’s situation and a woman on SAL, than a woman on SML. The tribunal stated that the correct comparison for pay would be between a male employee on SPL and a female employee on SPL.
Mr Price appealed to the EAT in relation to the second comparator. He argued that childcare was at the heart of both SPL and SAL and, as a result, he should not be discriminated against on the basis of pay.
The EAT dismissed his appeal and upheld the decision of the employment tribunal. The EAT argued that SAL went well beyond the purposes of childcare, including the formation of a parental bond following adoption proceedings. Therefore, a person taking SPL was not in a directly comparable position to that of one taking SAL. Section 23 of the Equality Act 2010 requires that there is no ‘material difference’ in circumstances between a Claimant and his comparator, so the claim failed.
The decision will certainly be welcomed by employers who operate an enhanced adoption pay policy. A strict analysis of the Equality Act 2010 means that employers will not face successful claims for sex discrimination where enhanced SPL is not offered to fathers seeking it. The logic of the EAT is clear in the sense that the process of adoption is a delicate one for a parent and that they should be given more time and flexibility to navigate the obstacles that come with it, including forming the parental bond and preparing and maintaining a safe environment.
However, we must remember that Mr Price’s claim bore out of a desire to be at home for longer with his newly born child. As such, the decision does little to address concerns that women continue to shoulder greater responsibility for childcare (especially in the early years), with women routinely offered enhanced pay during SML and fathers not in similar instances. This may be an area of law which employers and the courts will revisit in the not so distant future.