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Is It Direct Sex Discrimination to Pay Only Statutory Shared Parental Pay to Male Employees But Enhanced Maternity Pay to Female Employees?

on Friday, 20 April 2018.

No, held the Employment Appeal Tribunal (EAT) in the recent case of Capita Customer Management Ltd (CCM) v Ali, with the ruling that the purpose of shared parental leave is different to maternity leave and that the two are not therefore comparable.

The Facts

The Claimant, Mr Ali, was employed by CCM. Following the birth of his daughter, Mr Ali took two weeks' fully paid paternity leave. During this time, Mr Ali's wife was diagnosed with post-natal depression and advised to return to work. Mr Ali enquired about taking more leave to care for his daughter and was informed that he was eligible for shared parental leave, but would receive only statutory pay for this period. In contrast, female employees were entitled to 14 weeks' maternity leave on full pay.

Mr Ali issued proceedings in the Employment Tribunal (ET) asserting that the difference in treatment between female employees taking maternity leave and male employees taking shared parental leave amounted to direct sex discrimination.

ET Decision

The ET upheld Mr Ali's claim, concluding that he was entitled to compare himself with a hypothetical female colleague taking maternity leave. The ET held that after the two week compulsory maternity leave period, the purpose of leave, whether maternity or shared parental, was to care for the child. The ET ruled that Mr Ali had been treated less favourably than a comparable female employee and he had therefore been directly discriminated against.

In addition the ET held that the special treatment exception in s.13(6)(b) of the Equality Act 2010 did not apply. The exception states that special treatment afforded to a woman in connection with pregnancy or childbirth must not be considered when determining whether male staff have been treated less favourably than female staff. The ET held that enhanced maternity pay after the compulsory two week maternity leave period was special treatment for caring for a new born baby and therefore fell outside of the exception.

CCM appealed the decision.

EAT Decision

The EAT overturned the decision holding that the purpose of maternity leave is for the health and wellbeing of the mother. Although a mother on maternity leave will care for her new born child, this is not the primary purpose of maternity leave. The correct comparator for a direct sex discrimination claim is therefore a woman taking shared paternal leave, who would be entitled to statutory shared parental pay on the same terms as Mr Ali. Using this correct comparator, there had been no discrimination on the grounds of sex.

In addition, the EAT held that the more favourable pay terms received by a mother on maternity leave would fall within the Equality Act exception. The purpose of maternity leave and pay is to ensure the health and wellbeing of the mother and this related to pregnancy and childbirth rather than to care for a new born baby.

Best Practice

This decision is significant as it addresses the disputed issue of whether an employer discriminates against men in these circumstances, by drawing a clear distinction between the respective purposes of maternity leave and shared parental leave. However, another case on the same issues, Hextall v Chief Constable of Leicestershire Police, has also been heard by the EAT and is yet to be reported. This could have a different ruling and we will update you in due course.

Furthermore, in reaching the decision above, the EAT looked to the underlying EU Pregnant Workers Directive, which requires member states to allow a minimum of 14 weeks' maternity leave. The purpose of maternity leave at different stages may change. There is therefore still scope for male employees to seek parity with enhanced maternity schemes to the extent that pay is enhanced beyond the first 14 weeks of maternity leave.

Although this decision will be of comfort to employers operating enhanced maternity schemes and statutory shared parental schemes, it would be sensible to keep an ongoing watching brief on further cases in this area.


For more information, please contact Nick Murrell in our Employment Law team on 0117 314 5627.

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