What is the legal development?
There has been a lot of discussion this past week about the recent Scottish Employment Tribunal case of Snell v Network Rail.
Under Network Rail’s Shared Parental Leave (SPL) policy the mothers and primary adopters were entitled to enhanced pay for the first 26 weeks of SPL, whereas partners and secondary adopters received only the statutory rate throughout. The claimant alleged direct and indirect sex discrimination on the basis that, as the father of the child, he would receive only statutory pay for his 12 weeks leave.
Network Rail admitted indirect discrimination (so no new legal principles have been established) and was ordered by the Tribunal to pay nearly £30,000 as compensation. Whilst there may be no surprises in terms of the law, this case highlights the ethical challenge for employers – by the time of the hearing, Network Rail had already decided that the solution was to forget trying to be generous. They changed their policy, withdrawing the enhanced payment altogether and paying just statutory rates to both men and women.
What does this mean for employers?
Many employers pay only statutory rates anyway, so the case may not be of direct significance.
However, the interesting question is whether it is right to abandon generous policies and possible attempts to address a gender imbalance in the workplace when faced with litigation risk? Network Rail had argued that the enhanced payment to women was to recruit and retain women in a male dominated workforce.
Network Rail has faced some strong criticism on social media, with commentators questioning whether or not the cost was really so onerous that enhanced payments could not be provided for both men and women. We wonder how their reputation has been impacted by this decision. Should Network Rail be praised for being an employer simply trying to support women to remain at work (and perhaps also address a gender pay gap), but thwarted by the legal system? Or should it be seen as an employer which has acted churlishly in the face of financial threat?
Network Rail’s motivations with their original SPL policy were probably well placed, but with unintended consequences. Many businesses will come up against dilemmas where ‘doing the right thing’ may not necessarily be risk free in legal terms. Whilst businesses should not be deterred from being generous to their staff, Network Rail’s experience highlights the importance of assessing potential legal exposure at an early stage.