Is it discriminatory for employers to offer enhanced maternity pay for women but not enhanced shared parental pay for men?

No, held the Court of Appeal in the combined appeals of Capita v Ali and Hexhall v Chief Constable of Leicestershire [2019] EWCA Civ 900

Background

Shared parental leave gives parents the option of “splitting” 50 weeks leave following the birth or adoption of a child. If a mother/primary adopter reduces their maternity/adoption leave then their partner can take the remaining leave under the shared parental leave system.  Shared parental leave is designed to give parents flexibility in allocating childcare between them after the birth/adoption of a child.

In this case, the Claimants’ employers both offered shared parental leave at statutory pay rates but offered women on maternity leave enhanced maternity pay (i.e. over and above the statutory pay rates).

The Claimants complained that this was unlawful discrimination on the basis of sex and that men on shared parental leave should be paid the same enhanced rates as mothers on maternity leave.

Decision

The Court of Appeal rejected these arguments. It held that:

  • There was no direct discrimination as a man on shared parental leave is not comparable with a woman on maternity leave. In particular, shared parental leave is for childcare reasons whereas the purpose of maternity leave is the health and safety of the mother after childbirth;
  • There was no equal pay claim (meaning that the sex equality clause operated to ensure men and women are paid equally for shared parental leave and maternity leave) as the sex equality clause does not apply where there is special treatment relating to maternity; and
  • It was not indirectly discriminatory as men and women in the comparison pool were not placed at any particular disadvantage by the policy of paying only statutory pay to parents on shared parental leave.

What this means for your business

This decision is helpful for employers as it confirms that is permissible to continue to offer enhanced maternity pay for women but not enhance pay for shared parental leave.

This case reinforces the concept that women should be afforded special treatment following birth for health and safety reasons.

However, from an employee relations point of view if you offer enhanced terms for maternity leave, you may want to afford similar terms to those eligible to take shared parental leave (both men and women). This will help give new parents maximum flexibility when deciding how to allocate childcare between them when considering returning to work following the birth/adoption of a child and, arguably, will go some way to addressing gender inequality in the workplace.

Perhaps unsurprisingly, in practice, the take up rate for shared parental leave is very low (a recent study by the TUC found that less than 1% of eligible parents used shared parental leave last year and the Department of Business reported that it was less than 2% in the previous year) and this case is likely to do little to reverse this position.

If you would like any advice in relation to how this case impacts on your existing policies or advice on family friendly rights for your employees more generally please contact our employment team.

You can find a link to the full judgment here:

https://www.bailii.org/ew/cases/EWCA/Civ/2019/900.pdf