Sex discrimination – adoption leave compared to shared parental leave

In Price v Powys County Council, the Employment Appeal Tribunal upheld the decision of the lower tribunal that there was no sex discrimination where a male employee on shared parental leave was paid less than his female counterpart on adoption leave.

This case emphasises the importance of identifying an appropriate comparator for a successful direct discrimination claim. Under s.23 Equality Act, there must be ‘no material difference’ between comparative circumstances. In this case, the tribunal held that substantial differences existed between the two employees’ circumstances and the claim must fail.

So, what is this case about?

Mr Price was an employee of Powys County Council, who in anticipation of his first child with his wife, decided to apply for shared parental leave. The council’s policy on shared parental leave meant the amount to be received would be equivalent to statutory maternity pay. The council’s policy on adoption leave however, gave employees the right to full pay. After noticing this discrepancy, Mr Price brought a claim for sex discrimination based on being paid less than a female employee who was on adoption leave. 

Decision

The Employment Tribunal concluded that a male employee on shared parental leave was in materially different circumstances from a female employee on adoption leave and therefore Mr Price’s direct discrimination claim could not succeed. Mr Price subsequently appealed this decision and the Employment Appeal Tribunal dismissed the appeal, agreeing with the lower tribunal’s conclusions.

Before dismissing the appeal, the Employment Appeal Tribunal considered the five material differences between Mr Price’s circumstances and the female comparator as outlined by the Employment Tribunal and, although it found that one of them was wrongly decided, agreed with the others.    

In particular, it was held that adoption leave and shared parental leave have different purposes, because adoption leave is for more than just childcare but also to accommodate the entire adoption process, including screening, counselling, interviews, enhanced health and safety and meetings with the child.

Furthermore, it was held that the correct comparator for Mr Price would have been a female employee on shared parental leave. In such a scenario, the female employee would have been given the same treatment as Mr Price, therefore not giving rise to discrimination.

Impact

The decision in this case brings clarity to employers that have enhanced adoption pay policies, reassuring them of their protection against direct sex discrimination claims by comparison with shared parental leave pay. The decision also acts as a reminder to all employees that, for direct discrimination claims to succeed, comparators’ circumstances must not be materially different from their own.