98: Employment Appeal Tribunal rules that failure to pay enhanced shared parental leave pay to male employee is not direct sex discrimination

In Capita Customer Management Ltd v Ali, the Employment Appeal Tribunal (EAT) has ruled that failure to pay full salary to a father taking shared parental leave (SPL), when a mother taking maternity leave would have received full pay, did not amount to direct sex discrimination.

Female employees of Capita Customer Management Ltd were entitled to 14 weeks’ maternity leave on full salary. Male employees taking paternity leave were entitled to two weeks’ leave on full pay, followed by up to 26 weeks’ leave during which they ‘may or may not be paid.’ After the birth of his daughter, Mr Ali took two weeks’ paternity leave. Since his wife had post-natal depression and was advised to return to work, Mr Ali then asked to take SPL in order to care for his baby.  Capita advised him that he would receive only statutory shared parental pay. Mr Ali brought a claim of direct sex discrimination, arguing that he should be treated the same as female employees on maternity leave who were entitled to receive 14 weeks’ full pay.

The Tribunal upheld Mr Ali’s claim, finding that the purpose of the initial compulsory maternity leave period of two weeks was to allow recovery after childbirth, so was unique to mothers. However, beyond that period, Mr Ali could compare himself to a hypothetical female employee who had taken leave to care for her baby.  In the Tribunal’s view, given that men are now being encouraged to take a greater role in caring for their babies, the choice of which parent should take on the caring responsibility should be made free of assumptions that the mother is always best placed to do so. Mr Ali should therefore receive the same pay for carrying out the same role. The Tribunal rejected Capita’s argument that the full 14 week maternity period amounted to special treatment in connection with childbirth, which is an exception to sex discrimination under the Equality Act 2010.

On appeal, the EAT overturned the Tribunal’s ruling. The EAT noted that the right to maternity leave derives from the EU Pregnant Workers’ Directive which states that its primary purpose is to ensure the health and well-being of the mother in pregnancy and immediately after childbirth. In contrast, the purpose of SPL, which derives from the EU Parental Leave Directive, is to care for the baby. Mr Ali could not therefore compare himself to a woman on maternity leave. The correct comparator would be a woman on SPL, who would have been paid the same as Mr Ali. Even if Mr Ali had been able to compare himself with a woman on maternity leave, the EAT held that his claim would still have failed because the Equality Act 2010 allows special treatment to be given to a woman in connection with pregnancy and childbirth, which would cover the provision of additional pay during maternity leave.

Employers will welcome confirmation that it is not direct sex discrimination to pay a woman on maternity leave more than a man taking SPL, even when the SPL is taken shortly after the child’s birth. However, it should also be noted that the Pregnant Workers’ Directive only sets a minimum of 14 weeks’ maternity leave, so it is arguable that the underlying purpose of protecting the health and well-being of the mother does not continue after this period. After 14 weeks, since the purpose of both types of leave would then be to care for the baby, it might be possible to compare a father on SPL and a mother on maternity leave.  In addition, there may be an alternative argument based on indirect sex discrimination. The EAT recently held in the case of Hextall v Chief Constable of Leicestershire Police that an employer paying enhanced maternity pay for 18 weeks but only statutory shared parental pay was potentially applying an indirectly discriminatory practice that put men at a disadvantage. This case has been sent back to the Employment Tribunal to reconsider whether the practice was discriminatory and, if so, whether it was justified.