Shared parental leave and enhanced maternity pay

Tessa Robinson

Associate

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August 8, 2019

Categories Employment Law Updates

Since the introduction of shared parental leave in 2015 there has been a debate about whether employers who pay an enhanced rate of maternity pay – over and above the statutory minimum – should be required to treat shared parental leave in the same way. The Court of Appeal has now very firmly stamped on that idea.

In two cases – Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall – the employer offered enhanced maternity pay but only paid the statutory minimum rate for shared parental leave and a male employee complained that this was discriminatory.

In the case of Ali, the allegation was that the lower payment amounted to direct sex discrimination. This was based on the idea that a man taking shared parental leave was in the same position as a woman taking maternity leave. Mr Ali argued that after the initial two-week period of compulsory maternity leave, any remaining leave was simply for the purposes of childcare -and that was the same reason he had taken shared parental leave.

The Court of Appeal roundly rejected this argument.

Maternity leave was about much more than the provision of childcare. As well as allowing time for the mother’s physical recovery from pregnancy and childbirth, a period of maternity leave helped the development of the bond between mother and baby and made it easier to breastfeed the child. The proper comparison for a man taking shared parental leave was a woman taking shared parental leave, not a woman taking maternity leave. Since both men and women taking shared parental leave were treated in the same way there was no direct discrimination.

The main issue in the Hextall case was whether paying more for maternity leave than shared parental leave amounted to indirect discrimination. On this point the Court held that it could not.

Its very technical reason for reaching this conclusion was that a complaint about contractual entitlement to pay during a period of shared parental leave had to be brought as an equal pay claim (an argument that had not been raised in Ali).

However, the Equality Act excluded from an equal pay claim any terms ‘affording special treatment to women in connection with pregnancy or childbirth’. This did not leave room for an indirect sex discrimination case even to be argued. For completeness however, the Court held that such a claim would have failed in any event.

Men were not disadvantaged by the payment of the statutory rate of shared parental leave except in comparison to women taking maternity leave – and the two groups were not comparable.

Even if they were, there was no discrimination because the payment of enhanced maternity leave was a ‘proportionate means of achieving a legitimate aim’ – namely the special treatment of mothers in connection with pregnancy or childbirth.

In this case the Court of Appeal has done its best to close off any suggestion that an employer who pays an enhanced rate of statutory maternity pay must do the same when paying for shared parental leave. Unless there is an appeal to the Supreme Court, the matter can now be regarded as settled.

For further information contact our employment law team on 01227 763939.