In Shuter v Ford Motor Company Ltd, Ford has a non-contractual maternity pay scheme which provides women on maternity leave with 100% of basic pay for up to 52 weeks. This was introduced to “significantly enhance the company's ability to recruit and retain more female employees, therefore assisting the company's diversity target in respect of female employees”. Shuter took 5 months’ additional paternity leave and was paid the minimum statutory rate, meaning that he received around £18,000 less while absent. Shuter claimed direct and indirect sex discrimination.

The employment tribunal dismissed Shuter's direct sex discrimination claim as he had chosen the incorrect comparator, i.e. a female member of staff who had taken maternity leave and been paid her full pay, including during the period after 20 weeks from childbirth (additional paternity leave cannot begin earlier than 20 weeks after birth). The correct comparator was a female taking additional paternity leave, such as a female spouse or civil partner, and she would not have been treated any differently from Shuter under Ford’s policy.

As for indirect sex discrimination, the provision, criterion or practice (PCP) was Ford's “practice/policy of paying women basic pay when on leave beyond 20 weeks after the birth of the child when looking after their child”. This had a legitimate aim, i.e. recruiting and retaining women in the workforce, and statistical evidence demonstrated that an increase female representation in the workforce was needed. The method chosen was also proportionate. There had in fact been an increase in the number of female staff at a time when the overall workforce had reduced. Therefore Ford had justified its policy.

Although this tribunal decision is not binding, if employers decide to enhance maternity pay but not to enhance additional paternity leave pay then this case provides a good example of the type of thinking required when drafting policies. It is essential to set out the aim of a policy, why the means chosen are proportionate to the aim and how effectiveness will be measured. 

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