Two recent cases have posed the question of whether it is unlawful for men on shared parental leave to be paid less than mothers on maternity leave.
The Court of Appeal recently heard the conjoined cases of Ali v Capita and Hextall v Chief Constable of Leicestershire Police.
Here, the court sought to determine whether a failure to pay a male employee enhanced shared parental pay, in circumstances where it did offer enhanced pay to women on maternity leave, amounts to sex discrimination.
Ultimately, the court ruled that it does not, and that employers are within their rights to offer enhanced maternity pay, while only offering statutory shared parental pay for partners.
Ali v Capita Customer Management
In this case, under the terms of his Contract of Employment, Mr Ali was entitled to two weeks’ ordinary paternity leave (at basic pay), plus shared parental leave (SPL) paid at the statutory rate. Meanwhile, Capita offered enhanced maternity pay to birth mothers, comprised of 14 weeks’ basic pay and 25 weeks’ statutory maternity pay.
After taking his two weeks’ paid paternity leave, Mr Ali’s wife returned to work (for another employer). He then complained that any SPL should be paid at the same rate of pay as maternity leave.
Hextall v Chief Constable of Leicestershire Police
In the second case, Mr Hextall, a police officer, found himself in similar circumstances. Like Mr Ali, he also took SPL and complained that he was paid less than a female police officer on maternity leave.
He alleged that the provision, criteria or practice of paying SPL at the statutory rate put men at a particular disadvantage compared to women in the same material circumstances and was not justifiable.
In both Ali and Hextall, the court was tasked with determining whether paying men SPL at lower rate than women on maternity leave amounted to discrimination, either directly or indirectly, under the provisions of the Equality Act 2010.
The parties agreed that because the complaints were, in essence, related to discriminatory rates of pay, the claims should be treated as an equal pay or ‘equality of terms’ claims rather than indirect discrimination. However, the Court of Appeal helpfully made findings on all three types of sex discrimination.
Shared parental leave and maternity leave not comparable
After considering the facts of both cases, the Court of Appeal held that:
- Under the Equality Act 2010 (EqA), the special treatment afforded to a woman in connection with pregnancy or childbirth cannot be used as grounds for a direct sex discrimination claim.
- The EqA provides that in both direct and indirect discrimination claims, a comparison between employees can be made only if there is no material difference between the circumstances of the men and women in question. The Court of Appeal held that SPL and maternity leave served different purposes, with SPL introduced to assist with childcare arrangements and maternity leave designed to allow women to recover from pregnancy and childbirth. As such, the only appropriate direct comparison in these cases would be a female worker on SPL, not a woman on maternity leave.
- When dealing with complaints regarding equality of terms of employment, the EqA implied the sex equality clause into contracts. This requires that any term (such as the rate of SPL pay) be modified if it is less favourable than a corresponding term in the contract of a comparable employee (in this case, the rate of maternity leave pay). However, the sex equality clause cannot be relied on in cases such as Ali and Hextall because, again, it does not apply in situations where women are afforded special treatment in connection with pregnancy or childbirth.
For these reasons, the court ruled that it was not discriminatory to refuse a father on shared parental leave the same rights in respect of pay as a new mother on maternity leave following the birth of a child.
Ultimately, because the sex equality clause does not apply in cases where women have received special treatment relating to maternity, any equal pay claim brought by a man on shared parental leave pay would fail, even in cases where the terms are truly comparable. The situation would, of course, be different if men and women on shared parental leave were paid different rates.
James Tamm
Director of Legal Services
Expert Comment
This decision of the Court of Appeal seems like a victory for common sense. Given that the men in question were on shared parental leave, but trying to compare themselves to women on maternity leave, the claimants were always facing an uphill battle.
Indeed, if the court had ruled in favour of the claimants, one suspects that the practical effect would have been many employers ceasing to pay enhanced maternity pay rather than increasing the rates they paid on shared parental leave. Clearly, that would have been highly unsatisfactory.
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