Can a man on Shared Parental Leave use a woman on Adoption Leave as a comparator in a sex discrimination claim? The recent Employment Appeal Tribunal decision in Price v Powys County Council says not.

The Decision in Price v Powys County Council

The Claimant in this case, a man, took Shared Parental Leave (SPL) as soon as his wife’s compulsory maternity leave had ended. It was the Council’s policy that he would receive pay equal to statutory maternity pay, whereas the Council’s policy for those on Adoption Leave was to provide full pay.

The Claimant sought to use the fact that he was being paid less than a female comparator on Adoption Leave as the basis of a sex discrimination claim. One of the submissions the Claimant sought to argue was that the predominant purpose of both SPL and Adoption Leave is childcare and as such, Adoption Leave is directly comparable to SPL, and a male taking SPL should not be treated differently to a female taking Adoption Leave.

The Tribunal dismissed the claim on the basis that the female comparator on Adoption Leave was materially different from the Claimant for reasons such as Adoption Leave could begin before placement, whereas SPL could not and Adoption Leave was an immediate entitlement on placement, whereas SPL was not. The Claimant appealed this decision.

The Employment Appeal Tribunal dismissed the appeal and agreed that Adoption Leave is materially different to SPL as its purposes go beyond providing childcare alone. One of the differences the Employment Appeal Tribunal noted was that considerations to a child’s welfare in the case of adoption include matters such as the forming of a parental bond, becoming a family, and the taking of steps to prepare and maintain an appropriate and safe environment for the adopted child.

Summary

The case demonstrates that there is a material difference between Shared Parental Leave and Adoption Leave and therefore it is not possible to use someone on one of these types of leave as a comparator to the other in a sex discrimination claim. The Equality Act 2010 provides that there must be no material difference in circumstances between a Claimant and a comparator – the Employment Appeal Tribunal here confirmed that there are differences between the two types of leave that are ‘clearly material’ within the meaning of the Equality Act.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

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This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.