Childcare Counsel - male discrimination, suspending over allegations

Q Is it discriminatory for men to be paid less during shared parental leave than birth mothers during statutory maternity pay?

A Male employees recently challenged their employers’ family leave pay policies in the Court of Appeal, which ruled that it is not unlawful discrimination for men to be paid less on shared parental leave than birth mothers are paid during statutory maternity leave. Claims relating to differences between maternity pay and shared parental leave fail.

Where brought as an equal pay claim, there is a statutory exemption which says the equality clause has no effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth. Where brought as a direct discrimination claim, there is no comparator for male workers to show there has been discrimination – the only correct comparator is a woman taking shared parental leave, and if she has exactly the same entitlement to pay then the claim must fail.

Q We suspend employees after an allegation of misconduct, pending investigation, but one has claimed constructive dismissal…

A It is possible for suspension to amount to a breach of the implied duty of trust and confidence and result in a finding of unfair constructive dismissal where there is no reasonable or proper cause for the suspension. Further, the length of the suspension and the communications around that decision can also amount to a breach.

A practice of automatically suspending employees risks successful challenge. Instead, it is suggested that a review is undertaken in each case to ensure that the suspension can be justified. This should include consideration of whether suspension is necessary in all the circumstances and whether there are any reasonable alternatives to suspension, such as moving an employee to another setting during the investigation.

Send your questions to hannah.crown@markallengroup.com