Women might not be the only gender to reap the benefits of maternity leave anymore.  New shared parental leave and pay rights apply to the parents of babies due, or children matched for adoption, on or after April 5th.

The government has long been encouraging employers to enhance shared parental pay.  However, its view is that companies are not legally obligated to do this on the basis that the appropriate person for a male employee to compare himself with is not a woman receiving enhanced maternity pay, but a woman on shared parental leave.  If a man and a woman were to take parental leave, get treated the same way and paid the same wages, there would be zero claims for any kind of direct discrimination.

Unfortunately, the rules might not be completely without grey area.  Men can take shared parental leave from the birth of their baby.  This potentially leaves room for men to compare themselves with a new mother who is receiving an enhanced maternity pay.  In turn, this could lead to claims of discrimination because men would not be receiving any kind of enhanced pay during this shared parental leave period.

HR experts feel that even if direct discrimination claims don’t fully succeed, the indirect claims would still be an issue.  In one recent case, an indirect discrimination claim did not succeed because the employment tribunal agreed that while the male was treated differently, the female’s enhanced maternity pay was “objectively justified”.

One way, according to human resource experts, to avoid these kinds of claims, is to match the company’s maternity pay provisions for the male.  If this would not be feasible, an alternative could be to offer some form of enhancement during the shared leave.