The Court of Appeal in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall has considered whether it was unlawful discrimination on the basis of sex for men to be paid less on shared parental leave than birth mothers are paid on statutory maternity leave. It was held that no discrimination will occur, either direct or indirect, where an employer pays a male on shared parental leave less than the enhanced rate of pay a woman on maternity leave would receive.
This appeal concerned two separate claims joined together.
Claimant A was employed by CCM Ltd and Claimant H was a serving police officer in Leicestershire. They took shared parental leave after becoming new fathers. Both employers had policies offering enhanced maternity pay to women taking maternity leave, however both only offered the statutory rate of shared parental pay to those taking shared parental leave. A and H both brought employment tribunal claims, arguing failure to pay them the equivalent of the enhanced maternity pay amounted to direct discrimination. H also claimed indirect discrimination.
The employment tribunal originally upheld A’s claim for direct discrimination, which was overturned by the employment appeal tribunal. The tribunal rejected both of H’s claims; H appealed the indirect discrimination claim and at the same time his employer cross-appealed that the claim had been incorrectly classified as indirect discrimination and should in fact be an equal pay claim. The appeals for both A and H reached the Court of Appeal.
In relation to the direct discrimination claim, A accepted that there was a difference between shared parental leave and the two week period of compulsory maternity leave, but that the remainder of the period of shared parental leave he was entitled to should be treated the same as a female employee taking maternity leave and so enhanced pay should be applied.
The court of Appeal disagreed. The predominant purpose of statutory maternity leave for a women is not childcare (as it is for shared parental leave), but the protection of a woman in connection with the effects of pregnancy and motherhood. This means that men on parental leave and women on maternity leave are not appropriate comparators for the purposes of the Equality Act 2010. The proper comparator for A was therefore a female worker who is on shared parental leave. Since there would be no difference between a man on shared parental leave and a woman on shared parental leave, A’s appeal had to be rejected.
In relation to the indirect discrimination claim, H argued that the provision, criterion or practice ‘PCP’, i.e. the payment of enhanced maternity leave only to women, caused an unfair disadvantage. The Court of Appeal argued that women on maternity leave are materially different from men or women taking shared parental leave (for the reasons outlined above in relation to direct discrimination) and should therefore be excluded from the pool of comparison for the purpose of indirect discrimination claims. Once that is done the PCP can be seen to cause no particular disadvantage to H. Even if, the Court suggested, they were wrong about the composition of the pool, it was suggested that any disadvantage was justified as being a proportionate means of achieving a legitimate aim, namely the special treatment of mothers in connection with pregnancy or childbirth.
In any event, the Court of Appeal agreed that this was properly characterised as an equal pay claim.
The effect of this judgement is that male employees will not suffer discrimination, nor will there be a valid equal pay claim, when their employer does not pay enhanced shared parental pay equivalent to the maternity pay that a woman on maternity leave for the same period would have received.
Shared Parental Leave and Sex Discrimination
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