Paying enhanced adoption pay alongside lower shared parental pay is not direct discrimination (Price v Powys County Council)

Where an employer pays adoption pay at an enhanced rate but pays shared parental pay to all employees (male or female) at a lower rate (e.g., at the statutory rate), that will not amount to direct sex discrimination, according to the EAT.

Price v Powys County Council (UKEAT/0133/20/LA)

What are the practical implications of this judgment?

We already knew from the Court of Appeal’s judgment in Capita Customer Management v Ali that an employer that pays maternity pay at an enhanced rate but pays shared parental pay to all employees (male or female) at the statutory rate does not discriminate directly because of sex.

In this case, the EAT effectively extends that principle to cover the situation where an employer pays adoption pay at an enhanced rate but pays shared parental pay to all employees (male or female) at the statutory rate: that will not amount to direct sex discrimination either.

The reasoning to support this conclusion is very similar to that of the Court of Appeal in Capita Customer Management v Ali (indeed that case is referred to considerably in this judgment). In summary:

• the underlying predominant purpose of adoption leave and shared parental leave are not the same. Although they both facilitate childcare, the purpose of adoption leave extends well beyond that purpose
• it follows that where a male claimant taking shared parental leave (who is receiving only the statutory rate of shared parental pay) seeks to compare himself, in a claim of direct sex discrimination, to a female fellow-employee who takes adoption leave (who is receiving an enhanced rate of adoption pay under her employer’s policy), that woman will not be a valid comparator because there are ‘material differences’ between the claimant and her, on account of the different purposes of the two types of leave in question

This judgment will give succour to employers who have been operating enhanced pay for those on adoption, but only providing a lower rate (e.g., the statutory rate) to any employee (male or female) taking shared parental leave. Such differential policies may continue without any concern that they may give rise to direct sex discrimination claims.

Case details

• Court: Employment Appeal Tribunal
• Judge: Choudhury P, Ms K Bilgan, Miss S M Wilson CBE
• Date of judgment: 31 March 2021

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