There has been much litigation in recent years relating to parental leave of various sorts, whether that be Maternity Leave (ML), Paternity Leave, Adoption Leave (AL), or Shared Parental Leave (ShPL). The recent case of Mr B Price v Powys County Council UKEAT/0133/20/LA (V) heard by the EAT related to the final two, AL and ShPL.
The Claimant wanted to take ShPL on the birth of his new baby. He was informed that he would only be entitled to an amount equal to that of statutory maternity pay. He brought a claim in the ET for direct discrimination.
For there to be direct discrimination established, a Claimant must show that a person, because of the Claimant’s protected characteristic, treats the Claimant less favourably than others. This requires the use of a comparator. The Claimant in this case alleged that he was being discriminated against on the basis of his sex, and used two comparators: a female worker on ML, and a female worker on AL. The Tribunal rejected the ML element of the claim because of the fact that ML’s intended purposes go beyond that of merely providing childcare (which was the intended purpose of ShPL), and therefore was materially different. The question which remained for the Tribunal was whether AL was materially different to ShPL. It concluded that it was, and the Claimant appealed to the EAT
Differences in leave
The first ground of appeal related to the provision of parental leave itself: namely that the purpose of ShPL was to allow for the provision of childcare, and that AL should be regarded in the same way. The EAT rejected this ground on the basis that AL extended well beyond childcare alone; e.g. as AL could commence before placement of the child, the purpose would be “to enable the adoptive parents to prepare both themselves and their environment for the placement of the child.”
Differences between Claimant and comparator
There were four factors set out by the Tribunal which the EAT concluded were correct in differentiating a claimant on ShPL to a female comparator on AL. They were:
- AL could commence before a child’s placement, whereas ShPL could not
The EAT considered this difference not immaterial, as AL is about more than just the facilitation of child-care. There could, of course, be no question of taking ShPL at such an early stage when there is no child to look after.
- AL is an immediate entitlement, whereas ShPL is not
ShPL can commence at any time during the child’s first year, whereas AL commences, at latest, on the date of the child’s placement. That, according to the EAT, 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
- ShPL can only be taken with the partner’s agreement to give up AL
The Claimant argued that at the point of electing which adoptive parent is to be the adopter for the purposes of the PALR, the partner who is not elected is giving up an entitlement. However, the EAT ruled that, at the point at which that election is made, neither partner has any entitlement to forego.
- ShPL must be taken within 52 weeks of the placement and that within the period it could be “dipped in and out”.
By contrast, ordinary AL may be taken by the adopter in a continuous period of up to 26 weeks commencing no later than the date of placement of the child. Such leave is consistent with the purposes described which, in the view of the EAT, extend beyond childcare.
Our lawyers’ views on the case of Mr B Price v Powys County Council UKEAT/0133/20/LA (V)
Sacha Barrett, a Senior Associate in the employment team, commented on the case as follows: “This case again shows that adoption leave, or other forms of leave, cannot be compared directly to maternity leave when creating comparators for discrimination claims.”