Shared Parental Pay - Are You Discriminating Against Your Male Employees?
Consistent with the Burgundy Book provisions, many schools and academy trusts offer enhanced maternity pay benefits, whilst limiting the pay of those taking shared parental leave (SPL) and pay to the statutory rate.
Does this constitute sex discrimination against male employees?
This has recently been considered in two cases, that had similar facts but approached this from different angles.
Capita Customer Management Ltd (CCM) v Ali
In this case, the Employment Appeal Tribunal (EAT) ruled that it did not constitute direct sex discrimination to enhance maternity leave, but not shared parental pay. The EAT found that the purpose of SPL is different to maternity leave and that the two are not therefore comparable.
Hextall v Chief Constable of Leicestershire Police
In this case, the EAT concluded that it was not direct sex discrimination, but referred the case back to the Employment Tribunal (ET) to explore further whether it could constitute indirect sex discrimination and, if so, whether the employer can defend this as justifiable.
Do We Need to Change Our Policy?
At present, our advice remains that you may continue to offer enhanced maternity pay without a legal obligation to extend the same benefit to SPL pay.
Please maintain a watching brief on the developing case law. At the same time, we will all no doubt be considering the likely justification which may be considered for enhancing maternity pay whilst providing statutory pay only for SPL.
In the Ali case, the EAT concluded that the more favourable pay terms received by mothers on maternity leave would fall within the Equality Act exception which enables employers to treat women more favourably in connection with pregnancy or childbirth. The EAT appeared to accept that the purpose of maternity leave is not just to care for a new-born baby, but also to ensure the health and wellbeing of the mother. Paying enhanced maternity benefits to new mothers in recognition of this fact may be key in enabling schools to justify the difference in treatment if necessary.