179: Paying men on shared parental leave less than women on maternity leave is not discriminatory

In two separate cases, Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police, the Court of Appeal has ruled that it is not discriminatory to enhance maternity pay whilst paying only statutory shared parental pay.

In Ali v Capita Customer Management Ltd, Mr Ali was entitled to two weeks’ paternity leave at full pay and then up to 26 weeks’ additional paternity leave on statutory shared parental pay. His female colleagues were entitled to maternity pay of 14 weeks’ full pay followed by 25 weeks’ statutory maternity pay (SMP). The Employment Tribunal held that Mr Ali had been directly discriminated against on the grounds of sex, but dismissed his indirect discrimination claim. However, the Employment Appeal Tribunal (the EAT) upheld Capita’s appeal, ruling that there was no direct sex discrimination because a father taking shared parental leave (SPL) was not in a comparable situation to a mother taking maternity leave.

The Court of Appeal has now confirmed the EAT’s decision, ruling that pregnant women and new mothers on maternity leave cannot be compared with men on SPL because their circumstances are materially different. The underlying purpose of the 14 week maternity leave required by the EU Pregnant Workers’ Directive is to ensure the health and safety of pregnant workers and new mothers, and to guarantee pay of at least the same level as statutory sick pay. The Court of Appeal confirmed that the purpose of statutory maternity leave is to prepare for the later stages of pregnancy, to recuperate from pregnancy and childbirth, to breastfeed and to bond with the baby. It is also compulsory for the two weeks after birth. In contrast, the EU Parental Leave Directive focuses on childcare and makes no provision for pay. SPL is entirely optional, can only be taken after birth and with a partner’s agreement, and is dependent on the mother choosing to give up statutory maternity leave. Mr Ali’s claim therefore failed because the correct comparator was not a woman on maternity leave but a colleague on SPL, who would be paid the same rate.

In Hextall v Chief Constable of Leicestershire Police, Mr Hextall took 14 weeks’ SPL and was paid statutory shared parental pay, whereas his employer’s maternity policy provided for 18 weeks’ maternity leave at full pay. The Employment Tribunal dismissed his claims of direct and indirect sex discrimination. However, the EAT held that for the purposes of an indirect discrimination claim, men can compare themselves with women on maternity leave.

The Court of Appeal has now re-characterised Mr Hextall’s indirect discrimination claim as an equal pay claim. He argued that since his terms and conditions were less favourable than those of comparable female employees, the sex equality clause provided for in the Equality Act 2010 should have the effect of enhancing his terms to pay him the same as a woman on maternity leave. However, this argument failed because of an exception to the sex equality clause for women who are pregnant, who have given birth or who are breastfeeding.

A claim can only be about direct or indirect discrimination, or equal pay, not both. This meant that the indirect sex discrimination claim could not proceed. The Court of Appeal nevertheless went on to confirm that Mr Hextall’s indirect sex discrimination claim would have failed. For the same reasons which applied in Mr Ali’s direct sex discrimination claim, birth mothers could not be included in the pool for comparison because their circumstances were materially different to those of Mr Hextall. He would therefore have been unable to establish a particular disadvantage for male employees when compared with women. In addition, even if he had been able to, it would have been justified as a proportionate means of achieving the legitimate aim of giving special treatment to mothers in relation to pregnancy and childbirth.

Employers will welcome the Court of Appeal’s confirmation that they can enhance maternity pay but not shared parental pay, although this will no doubt mean that the take up of SPL will continue to be very low. However, it should be noted that both claimants are seeking leave to appeal to the Supreme Court.