Business Law & Compliance

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Employers could withdraw enhanced maternity pay to avoid discrimination claims

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The Shared Parental Leave regulations introduce the right for mothers and fathers of children born on or after 5 April 2015 to share maternity leave in the first year of a baby’s life. These same rights are also extended to same sex couples and those adopting children.

However, the government has left it up to individual employers to decide whether they choose to extend enhanced maternity pay available to new mothers to new parents taking shared parental leave.

Lawyers at Howard Kennedy suggest that there is a very real risk of employers leaving themselves open to sex discrimination claims when they do not match for fathers the enhanced maternity pay available to mothers. 

While there is doubt as to whether such claims would be successful, the risk of claims will nonetheless be of concern for employers.

“A number of large organisations – most notably PwC, Shell and the Civil Service – have said they will extend enhanced maternity pay to parents taking shared parental leave, but the additional costs and administrative burden will simply be too great for many smaller firms,” said Louise Gibson, an associate in the employment law team at Howard Kennedy.

“We would not be surprised if some employers now retrench or withdraw enhanced maternity pay from new mothers rather than extending it to a broader category of employees (including new fathers) thus avoiding the risk of discrimination claims from fathers and reducing costs at the same time. It would be an unfortunate and unintended consequence of what is at its heart a piece of legislation aimed at supporting parents as child carers.”

When the company surveyed its clients on the new Shared Parental Leave regulations in October, they found that 50 per cent had yet to decide whether or not to extend enhanced maternity pay to new fathers. This is despite over a third of employers expecting considerable interest in the new rights from their staff.

Gibson adds: “More telling, however, is that those clients surveyed appeared concerned that these new rights do no more than add yet another administrative burden for employers and HR teams.”

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