Two recent Court of Appeal cases have held that the respective employers of two male claimants had not discriminated against them by failing to pay enhanced shared parental leave pay.
Such a payment would have been equivalent to that received by a woman on maternity leave for the same period.
A direct discrimination claim brought in one of these cases, was based on the proposition that both maternity leave and shared parental leave are to facilitate childcare arrangements. This was rejected by the Court of Appeal, which made the distinction that the primary purpose of maternity leave was to protect the woman concerning matters related to her pregnancy and imminent motherhood.
In a second case concerning shared parental pay, the Court of Appeal held that both the EAT and the initial tribunal should have regarded it as an equal pay claim rather than indirect discrimination claim. The Equality Act 2010 doesn’t allow equal pay claims linked to the special treatment afforded to women in relation to pregnancy and childbirth and, therefore, the claim was rejected.
Both employers concerned offered enhanced maternity pay on different terms, but only the statutory rate of shared parental pay to employees taking shared parental leave. In each case, the claimants brought claims on the basis that the failure to pay them the equivalent of enhanced maternity pay amounted to direct sex discrimination.
In the case of Capita Customer Management Limited v Ali and Another, the Employment Appeal Tribunal had held that Mr Ali had not been discriminated against when he had been paid only two weeks’ shared parental leave on full pay whilst a female employee could take 14 weeks’ maternity leave on full pay. It distinguished between the Pregnant Workers Directive, whose primary purpose was the health and wellbeing of pregnant and birth mothers and required a minimum of 14 weeks’ maternity leave be paid, and the Parental Leave Directive which focused on the care of children and made no provision for pay.
In the case of Mr Ali, the Court of Appeal held that the correct comparator for his direct discrimination claim was not a female employee on maternity leave but a female worker on shared parental leave. Given that the rate of pay for a male and a female worker on shared parental leave would be the same, he had not been treated less favourably. It further went on to say that Mr Ali could not compare himself with a woman on maternity leave because the purpose of this, after the two-week compulsory period, was not to facilitate childcare but to assist new mothers in their physical and psychological recovery from pregnancy and childbirth.
In Hextall v Chief Constable of Leicestershire Police the Employment Appeal Tribunal had held that the employment tribunal had erred in applying a direct discrimination comparator (a woman on maternity leave) to an indirect discrimination claim. The paying of only the statutory rate of pay for those taking shared parental leave did not place men at a particular disadvantage, as it applied to both sexes.
With regard to Mr Hextall, the Court of Appeal held he had not been indirectly discriminated against on the ground of his sex. Women on maternity leave were materially different from men or women taking shared parental leave for the reasons outlined in Mr Ali.
The current legal position is therefore that there is no requirement to mirror the terms of existing company maternity pay in respect of shared parental pay.