By Alison Woods, Partner at international law firm CMS

A TRIBUNAL ruling in England earlier this month signalled that further changes could be on the way over fathers’ rights to enhanced rates of pay during shared parental leave. This is the first time a father has successfully argued that his employer’s failure to match enhanced rates of pay amounted to direct discrimination.

In this case, Madasar Ali, a call-centre worker from Leeds, requested time off to care for his newborn daughter after his wife had been diagnosed with post-natal depression and had been advised by her doctor to return to work. Mr Ali was looking to use shared parental leave (SPL) to take time off to care for his daughter.

His employer, Capita, offered statutory rates of pay to parents taking SPL, at present £140.98 per week. In contrast, mothers taking maternity leave were paid an enhanced rate, equivalent to their normal pay for 14 weeks, followed by the statutory rate for the remaining 25 weeks. Mr Ali raised an employment tribunal claim arguing that the failure to pay him the equivalent enhanced rates of pay for 14 weeks of his SPL amounted to direct discrimination.

The tribunal ruled there was direct discrimination, commenting: “In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity.”

SPL was introduced to encourage fathers to have more involvement in their child’s early development and help reduce some of the career burden many mothers face when they take time off work to have children.

While the Government has so far refused to introduce any form of higher pay rate for parents and specifically fathers who take SPL, we need only look at the Scandinavian model to see where the current direction of travel may lead us.

In Sweden, it is normal for fathers to take several months off in the first year of their child’s life where they become known as “latte papas”. The lessons from there and other Scandinavian countries suggest that, unless you specifically reserve a paid portion of parental leave to the fathers, then take-up will be low.

There is, of course, a debate about the cost for business and government in implementing paid-for SPL against the benefits it might deliver. The former Swedish deputy prime minister Bengt Westerburg, however, summed up his country’s position on this matter, saying: “The only way to achieve equality in society is to achieve equality in the home. Getting fathers to share the parental leave is an essential part of that.”

The recent English employment tribunal ruling is not binding on other tribunals but, if the decision was to be upheld in the Employment Appeal Tribunal, employers who decided not to replicate enhanced rates of pay to parents taking SPL would need to change their approach.

Implementing enhanced rates of pay for parents taking SPL could also prove a useful incentive for companies that want to be seen as an employer of choice, especially important for those operating in a competitive recruitment market.

While the English tribunal ruling suggests change is in the air, it will take time and a major cultural shift before we see significant changes in how the UK views SPL.

With women accounting for 30 per cent of main breadwinners, a three-fold increase from just a few decades ago, change does appear to be inevitable.