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Shared Parental Pay - Latest Case Law

on Tuesday, 08 May 2018.

Is it direct sex discrimination to pay only statutory shared parental pay to male employees but enhanced maternity pay to female employees?

No, held the Employment Appeal Tribunal (EAT) in Capita Customer Management Ltd (CCM) v Ali, 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.

The Decision

The ET in the first instance upheld Mr Ali's claim, concluding that he was entitled to compare himself with a hypothetical female colleague taking maternity leave. The ET ruled that Mr Ali had been treated less favourably than a comparable female employee and he had therefore been directly discriminated against.

CCM appealed the decision to the Employment Appeals Tribunal (EAT).

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 which enables employers to treat women more favourably in connection with pregnancy or childbirth. This is an interesting aspect as it recognises that maternity leave is not just to care for the new-born baby but also to ensure the health and wellbeing of the mother.

Best Practice

This decision is significant as many schools offer enhanced maternity pay, but not enhanced shared parental leave.

The case-law helps clarify that men and women opting to take shared parental leave, must be paid on the same basis, but that it is not unlawful to continue to distinguish between women on maternity leave and individuals taking shared parental leave.

It is worth noting that the conclusions reached in the Ali case were based on the first 14 weeks of maternity leave, which is the period specified under the European legislation, the EU Pregnant Workers Directive. Although most schools maternity schemes do not offer lengthy periods of enhanced maternity pay there is still potentially scope for men to bring a challenge if an enhanced maternity scheme continues beyond the first 14 weeks. This may bring under scrutiny whether the exemption which allows for special treatment for 'pregnancy and childbirth' continues for the entire maternity leave period, or if at some point the reason for the leave is considered to be something which is not directly connected to pregnancy and childbirth.  

There is also another case going through the courts on this issue, Hextall v Chief Constable of Leicestershire Police which has also been heard by the EAT but is yet to be reported. Whilst we would anticipate that the decision will be consistent with the EAT's decision in Ali, we will update you in due course and it is worth keeping a watching brief on any developments.


For more information, please contact Alice Reeve in our Employment Law team on 0117 314 5383.