redmans-blog-analysisIn the case of Snell v Network Rail ETS/4100178/2016 an Employment Tribunal held that an employers’ policy of paying enhanced pay to only mothers and primary adopters on shared parental leave (and only paying statutory shared parental pay to partners and secondary adopters) amounted to discrimination.

Mr Snell works for Network Rail, as does Mr Snell’s wife. He and his wife informed Network Rail in 2015 that they intended to take shared parental leave to look after their child, who was due on 2 January 2016.

Upon making this request Mr Snell was informed that Network Rail’s family-friendly policy was as follows:

  • That mothers and primary adopters could receive 26 weeks’ shared parental pay at full pay, a further 13 weeks’ paid at the rate of statutory shared parental pay, and a further 13 weeks’ unpaid leave
  • That partners and secondary adopters were entitled to 39 weeks’ shared parental pay at the rate of statutory shared parental pay and a further 13 weeks’ unpaid leave

Mr Snell complained in a letter dated 22 September 2015 that he believed Network Rail’s approach to shared parental pay was discriminatory (as his pay entitlement was lower than his wife’s). Mr Snell’s line manager Mr Grossart referred his complaint to Network Rail’s Human Resources department but there was little progress before a grievance hearing took place on 5 November 2015 (chaired by Mr Grossart). After the grievance hearing Mr Snell became concerned that he had not receive an outcome to his grievance in a timeline manner and contacted Mr Grossart. He was then informed by Mr Grossart that his grievance had been rejected on a number of grounds, including that it was up to Network Rail to decide how it implemented its enhanced shared parental pay policy and that the policy was designed to retain female employees in a male-dominated industry.

Mr Snell appealed against the outcome of his grievance by way of a letter dated 13 January 2016. He also submitted Employment Tribunal claims for direct sex discrimination and indirect sex discrimination on 28 January 2016. Mr Snell appealed against the outcome of his grievance on the following basis: the length of time it had taken to deal with his initial grievance, that there was no material difference between a father taking shared parental leave and a mother taking shared parental leave, and that Network Rail’s policy simply reinforced gender stereotypes that mothers are the main care-givers.

An appeal hearing was held on 23 February 2016 and rejected by way of a letter dated 5 April 2016.

Network Rail conceded in a letter dated 15 July 2016 that its policy relating to enhanced shared parental leave was indirectly discriminatory on the understanding that Mr Snell would withdraw his direct discrimination claim (Mr Snell did so).

A remedy hearing took place on 26 and 27 July 2016, with the parties agreeing that the Employment Tribunal should make a declaration that Mr Snell had been indirectly discriminated against on the grounds of his gender by the application of Network Rail’s family-friendly policy. The Employment Tribunal also awarded Mr Snell £28,321, comprised of: £16,129 as compensation for future loss of earnings; £6,000 for injury to feelings; £2,779 for the employer’s failure to follow the ACAS Code of Practice relating to grievances; £1,753 for pension loss; and £458 in interest. Mr Snell was also reimbursed £1,200 in respect of his Employment Tribunal costs.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This is the first recorded case of discrimination based upon a shared parental leave policy. Employers should check their policies regularly to ensure that they are in compliance with legal and regulatory standards, as well as to ensure that they are not discriminatory in any respect.”

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