• Kiri Thompson

Parental Leave or Adoption Leave - The Difference for Discrimination Claims

There are several different forms of leave available to people who have, or are about to become parents, either natural or adoptive. But what are the differences between them, and do they matter when the question of discrimination arises?

A recent case at the Employment Appeal Tribunal highlights that, on occasion, there may be significant differences in the various forms of parental leave which may not be immediately obvious. As such, employers may need to be mindful when drafting such policies covering these types of parental leave, that they do have an awareness of any comparators which may arise if an employee seeks to make a sex discrimination claim.

What happened?

In this particular case, the claimant was Mr Price who had recently become a father, and as such requested to take Shared Parental Leave as soon as his wife’s period of compulsory maternity leave was brought to an end. However, upon enquiring about his entitlements under his employer’s Shared Parental Leave policy, Mr Price was told that it was company policy to pay those on Shared Parental Leave the equivalent to Statutory Maternity Pay, whereas those on Adoption Leave would receive full pay.

Mr Price felt that as a man taking Shared Parental Leave, the company policy meant he was receiving less pay than a female comparator who had taken Adoption Leave, and as such Mr Price brought a claim in the Employment tribunal for what he believed was direct sex discrimination.

The main argument Mr Price presented in his claim was that he felt Shared Parental Leave and Adoption Leave were directly comparable types of leave, because in his opinion the primary purpose of these two types of leave was to provide childcare. As such, Mr Price argued that they should therefore offer the same payments to anyone taking those types of leave, regardless of the person’s sex.

What does the law say?

As part of the law on direct discrimination, Section 13 of the Equality Act 2010 says that:

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

But who are “others”? This is where the concept of a comparator may be used.

Where an employee makes a claim for direct discrimination, the employment tribunal will look to compare the claimant’s treatment with that of another person who is, or has been, in the same situation as the claimant, but who does not have the same protected characteristic as the claimant. The person used to make this comparison assessment is formally referred to within the Equality Act 2010 as a comparator.

“The same situation” does not have to be identical but there have to be enough similarities between the claimant and their chosen comparator to clearly assess if the claimant’s detriment has occurred because of their protected characteristic, and not for some other reason.

There may be occasions where the situation in which the claimant finds themselves is completely unique and as a result there is no clear comparator. If that is the case, the claimant can also use what is known as a hypothetical comparator instead.

A hypothetical comparator is someone whose circumstances are not exactly the same but are similar enough to show the claimant’s treatment likely occurred because of their protected characteristic. It is possible to have more than one hypothetical comparator, where a claimant provides evidence regarding the treatment of several other people all in similar situations to argue that without their protected characteristic the claimant theoretically would have been treated better in that comparable situation, the same as their hypothetical comparators were.

In this case, Mr Price said he felt that he was being discriminated against on the basis of his sex and cited two comparators to support his claim: a woman on Maternity Leave and a woman on Adoption Leave.

His argument was that both Shared Parental Leave and Adoption Leave have childcare as their primary purpose and as such both forms of leave are directly comparable. A man who takes Shared Parental Leave should be treated in the same way as a woman who takes Adoption Leave, including receiving the same payment for that leave. As Mr Price was receiving less pay than a female comparator on Adoption Leave, he claimed he was being directly discriminated against on the grounds of his sex.

What did the employment tribunal say?

The employment tribunal concluded that the first comparator was materially different from Mr Price’s circumstances, and the second comparator was not “materially the same”.

Mr Price appealed to the Employment Appeal Tribunal (EAT).

The EAT rejected Mr Price’s first ground of appeal which was that the primary purpose of both Shared Parental Leave and Adoption Leave was to provide childcare, and as such should therefore be regarded in the same way. The EAT agreed with the original tribunal judgment, which set out four determining factors that showed a clear difference between someone taking Shared Parental Leave and a comparator who had taken Adoption Leave:

  1. Adoption Leave is permitted to begin prior to the child being placed with the Adoptive Parents, whereas Shared Parental Leave can only begin once any period of Adoption Leave, or Maternity Leave, is brought to an end first. This clearly shows that Adoption Leave goes further than just for the purposes of providing childcare. Shared Parental Leave could not, by its very nature, begin prior to the birth of the child as there would be no child yet to care for, and a period of Adoption or Maternity Leave must occur prior to any period of Shared Parental Leave commencing.

  2. Adoption Leave is an immediate entitlement, starting at the latest on the day that the child is placed. In comparison, Shared Parental leave can begin at any time during the child’s first year once any period of either Adoption Leave, or Maternity Leave, has been brought to an end. The EAT said that this is a material difference, since the parent taking Adoption Leave needs time at the start of the placement to prepare a safe and stable environment for the child and develop a parental bond.

  3. A person who requests to take Shared Parental Leave can do so only if they obtain their partner’s agreement to curtail either their Maternity Leave or Adoption Leave. Mr Price had said that when choosing which adoptive parent is going to be the adopter under the Paternity and Adoption Leave Regulations 2002, the partner who is not chosen is therefore giving up an entitlement. The EAT disagreed with this argument, concluding that when the choice is made there is no entitlement to forego at that time. Under regulation 2(4A) of the Paternity and Adoption Leave Regulations 2002, a person elects to be a child’s adopter at the point when the adoption agency matches a child with a person, either individually or jointly with another person. That exercise necessarily takes place prior to any entitlement to Adoption Leave arising, as Adoption Leave is only available to an employee who is the child’s primary adopter.

  4. For Adoption Leave, any period of Shared Parental Leave (ShPL) must be taken within 52 weeks of the start of the child’s placement, after the primary adopter curtails their Adoption Leave. During the period of Shared Parental Leave, the person taking the ShPL could opt to take either 1 period of continuous leave, or, up to 3 periods of discontinuous leave in between which they return to work, before then going back on to ShPL at a later date. In comparison, Adoption Leave has to be taken by the adopter as one single continuous and unbroken period of up to 26 weeks and has to start no later than the first day of the placement period.

Taking these factors into consideration, the EAT upheld the employment tribunal’s original decision and dismissed Mr Price’s appeal.

What should employers do?

The rules on Adoption, Maternity, Paternity and Shared Parental Leave can at times be very complex, and as such many employers may struggle to correctly interpret these rules and the various scenarios and key factors which may arise as a result.

During this particular case, the employer’s policies on these forms of parental leave were tested and found to be solid, but this may not always be the case and an employer may unfortunately not realise their policy is unsound until it is rigorously tested in an employment tribunal. Where this occurs, that situation may lead to significant legal costs being incurred for the employer, including time spent defending their case and any compensation awarded to the claimant by the employment tribunal.

As such, it is very important to ensure that employers are regularly reviewing all company HR policies and procedures, including those for any form of parental leave, to ensure such policies are always up to date and are fully compliant with the relevant legal governance.

Where an employer is in doubt that their policies are compliant in this area, it is recommended that they seek employment law advice from a trusted source who is familiar with this area of law.