CABLE: Current Awareness Bulletin - Oct 24, 2016

Author:Ms Heidi Watson
Profession:Clyde & Co

Shared parental leave

Snell v Network Rail Infrastructure Limited S/4100178/2016  - Remedy for discriminatory levels of Shared Parental Pay

Network Rail offered mothers an enhanced level of Shared Parental Pay when they took Shared Parental Leave, but only statutory pay for fathers, or partners.  Mr Snell wanted to take Shared Parental Leave but argued that he should be paid at the same rate as his wife, also a Network Rail employee, who was entitled to enhanced Shared Parental Pay. 

Although Mr Snell brought a claim for both direct and indirect sex discrimination, he subsequently withdrew the direct discrimination claim and Network Rail conceded the indirect sex discrimination claim. Network Rail originally tried to justify its policy on the basis that the correct comparator was a female partner, not a mother or primary carer, and that even if the policy put Mr Snell at a disadvantage, it could be objectively justified. This was because the policy was a proportionate means of achieving Network Rail's aim of recruiting and retaining women in a male dominated workforce.

The only issue before the tribunal was the level of compensation. Mr Snell was awarded future losses for the 24 weeks of Shared Parental Leave and £5,000 for injury to feelings.

Practical point

This decision highlights that Shared Parental Pay provisions should be the same for men and women, otherwise companies could face discrimination claims.

To avoid future claims, Network Rail amended their Shared Parental Pay arrangements so that anyone taking parental leave (whether that is the mother, father or the mother's partner) will only be entitled to statutory Shared Parental Pay - essentially a 'levelling down' of pay, making it less attractive for its workforce to take Shared Parental Leave.

We still await a claim in respect of whether a man in receipt of statutory Shared Parental Pay seeks to compare himself to a woman in receipt of enhanced maternity pay.

Holiday pay

British Gas Trading Ltd v Lock [2016] EWCA Civ 983  - Contractual results-based commission must be included in holiday pay

Mr Lock was a British Gas salesman, who was paid commission based on the sales he made.  The commission he earned, which was not based on the amount of work that he did but on the outcome of that work, was significantly more than his basic salary. As he could not earn commission while on annual leave, in the weeks after taking holiday Mr Lock was only paid his basic pay, plus any commission he had earned...

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