An employment tribunal has ruled that car manufacturer Ford was justified in not paying enhanced paternity pay to a male employee during additional paternity leave.
In the case of Shuter v Ford Motor Company, an employment tribunal ruled that the organisation was not obliged to provide enhanced pay incircumstances where it also provided a generous enhancements to maternity leave pay.
Shuter originally lodged a claim for direct and indirect sex discrimination after claiming he was unfairly financially disadvantaged during his five-month period of advanced paternity leave. He took additional paternity leave from 15 July to 6 December 2013 afther his partner returned to work following maternity leave.
During Shuter’s additional paternity leave, Ford paid him the statutory rate of pay, which was the lesser of £136.78 per week or 90% of average earnings.
At the same time, Ford operated an enhanced maternity pay scheme, in which mothers were paid 100% of their basic pay for the 52 weeks of maternity leave.
Shuter argued that this difference meant he lost approximately £18,000 compared to a woman receiving enhanced maternity pay.
The employment tribunal rejected his claim on the basis that Shuter had chosen the incorrect comparator in identifying a female employee who had taken maternity leave.
The correct member comparator would have been a female employee applying for additional parental leave, for example the partner of a woman who had given birth.
In this situation, Ford would have paid the female employee the same as Shuter. Therefore, there was no direct discrimination because both man and woman were paid at the same level while on additional leave.
The indirect discrimination claim also failed. The tribunal did not accept the Ford employee’s argument that a number of European cases had broadened the concept of maternity leave after 20 weeks to something more akin to childcare leave.
On considering whether it was justified, however, Ford successfully argued that this practice of not paying enhanced paternity pay was necessary in order to achieve a legitimate aim, which was to increase the number of woman it employed, which had a male-dominated workforce.
Alison Woods, a partner at law firm CMS Cameron McKenna, said: “This is the first reported case to look at a failure to pay enhanced rates to men in an additional paternity pay context. While there are a number of differences between shared parental leave and additional paternity leave, the legal arguments are similar.
“Although there may still be scope to revisit the direct discrimination argument based on the European cases, it was rejected here and will require further guidance at appellate level before we have clarity on this point.
“But many employers may struggle to find similar evidence. Ford was able to provide detailed records of its efforts to increase the number of female employees in the workforce. It had set a target that its workforce was to be 25% female by 2005.
“This case would certainly suggest that the greatest risk from failing to pay men in these circumstances is a claim for indirect discrimination.”
