Failure to enhance shared parental pay does not amount to direct discrimination against men

The Employment Appeal Tribunal (EAT) has held that an employer is not directly discriminating against men if it does not enhance its shared parental pay in line with its enhanced maternity pay.

Shared parental leave and pay

Shared parental leave, which was introduced by the Children and Families Act 2014, gives employees, who are parents, flexibility when taking leave in the first year after the birth of a child or the adoption a child. These employees, including a limited category of non-employees, may also able to claim statutory shared parental pay if they meet certain eligibility criteria.

An employee who is eligible to receive statutory shared parental pay will either be paid £145.18 a week or 90% of his or her average weekly earnings – whichever is lower.

Employers have the option to provide more than the minimum amount of statutory shared parental pay to their employees although there is no statutory requirement to do so. Individuals may assume that employers are likely to enhance their shared parental pay where they already provide an enhanced maternity pay to their employees, however, many employers who pay enhanced maternity pay currently only pay the statutory minimum for shared parental pay. Some have argued that this amounts to direct discrimination against men. The recent case of Capita v Ali has shed light on this debate.

The case: Capita v Ali

An employment tribunal’s decision, which ruled in favour of a father who claimed direct discrimination for his employer’s failure to pay enhanced shared parental pay, has been overturned by the EAT which has confirmed that a failure to enhance shared parental pay in line with enhanced maternity pay is not direct discrimination against men.

In its reasoning, the EAT held that the Employment Tribunal had failed to have regard to the purpose of maternity leave and pay when making its decision. A father’s circumstances are not comparable to that of a mother who has recently given birth within the meaning of the Equality Act 2010. The purpose of shared parental leave and pay for a father is to care for the child, whereas the purpose of maternity leave and pay for a mother is for her health and wellbeing in pregnancy, confinement and after recent childbirth. A mother caring for her child after birth is a consequence of maternity leave and pay and is not the purpose.

The EAT also highlighted the part of the Equality Act 2010 which states that where special treatment is afforded to a women in connection with pregnancy or childbirth there is no direct discrimination if a man is treated less favourably i.e. in this case where enhanced maternity pay is provided to a woman and only the statutory shared parental pay is paid to a man.

Comment

This decision is significant as it resolves the issue of whether or not an employer is directly discriminating against a man if it pays enhanced maternity pay but only statutory shared parental pay.

Notwithstanding this, employers should still consider whether matching these payments would be in their interests. Matching these payments may attract and also reward high-calibre employees. A number of high profile employers have already announced their intention to pay enhanced shared parental pay so as to equalise the benefits available to the men and women within their workforces.