Our newsletter for June is concentrating on a noteworthy decision from the past few weeks relating to shared parental pay.

In the joined appeals of Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police, the Court of Appeal has decided that not paying male employees enhanced shared parental pay is not direct or indirect sex discrimination or a breach of equal pay. This decision has been long awaited by employers who have been seeking clarity on the issue of whether they should be paying enhanced shared parental pay to match any enhanced provision given to women on maternity leave.

The facts of both cases were very similar; both involved fathers taking shared parental leave. They were paid statutory shared parental pay, while female colleagues taking maternity leave were paid enhanced maternity pay. Mr Ali and Mr Hextall both claimed that they had suffered direct and indirect discrimination on the ground of sex and Mr Hextall also brought an equal pay claim on the basis that his terms were less favourable than a woman on maternity leave. The outcome of the EAT decisions meant that there remained an element of uncertainty for employers in relation to whether paying fathers statutory shared parental pay whilst paying mothers enhanced maternity pay was in fact lawful.

The Court of Appeal decision now provides us with some welcome certainty on the matter. The key elements in the Court’s decision that paying employees on shared parental pay less than those on maternity leave is not unlawful were:

  •  The correct comparator in a direct discrimination case on these grounds is a female worker on shared parental leave. A father on shared parental leave cannot compare himself with a woman on maternity leave because the circumstances of women on maternity leave are materially different. The purpose of statutory maternity leave is not the facilitation of childcare (as in the case of shared parental leave), but other matters exclusive to pregnancy and childbirth e.g. to recuperate from childbirth and to develop a special relationship between mother and child.
  • There are significant differences between shared parental leave and statutory maternity leave, maternity leave being in part compulsory, and an immediate entitlement even where there is no child to look after; shared parental leave being optional and only taken after birth with the agreement of the mother (who must give up her maternity leave entitlement).
  • The equal pay claim could not succeed, because the terms relied upon by way of comparison were more favourable terms related to special treatment afforded to a woman in connection with pregnancy or childbirth, which are excluded in relation to such a claim.
  • In the event that indirect discrimination had been established (which in these cases it was not) it could have been justified as being a proportionate means of achieving a legitimate aim in relation to the special treatment of mothers in connection with pregnancy or childbirth.

For now therefore, the Court of Appeal’s decision can provide comfort to employers who distinguish the rights they afford women on maternity leave from those taking shared parental leave. However, both Mr Ali and Mr Hextall are seeking permission to appeal to the Supreme Court, so to a degree it remains a case of watch this space.

If you have any queries in relation to homeworking or in general please contact our Employment Team who will be happy to help.