Should a male employee who takes shared parental leave be entitled to full pay where a female colleague receives full pay for the same period under an enhanced maternity pay scheme?
Is it sex discrimination if they aren’t paid the same? This was recently considered by the Court of Appeal in relation to two combined cases.
Capita v Ali and Hextall v Chief Constable of Leicestershire
Mr Ali’s daughter was born on 5 February 2016, 2 weeks premature. He took two weeks of leave immediately following his daughter’s birth. During this leave, his wife was diagnosed with post-natal depression and advised by her doctor to return to work. Mr Ali requested leave from work to allow this to happen. He wanted to be paid the same rate as a female employee (or his wife) would have if they had taken maternity leave. He argued that after the 2 weeks compulsory maternity leave (which he understood was necessary for the mother to recover after birth) either parent could care for the baby depending on the choices they made. The position that he was not entitled to the same pay as a woman performing the same role, took away the choice he and his wife wanted to make as parents and deterred him from taking leave. He brought a claim for unlawful direct sex discrimination. We covered the case in a previous alert here.
Mr Hextall was a police officer who brought an indirect discrimination claim in similar circumstances. Mr Hextall’s wife runs her own business and following the birth of their child, Mr Hextall took a 14 week period of shared parental leave for his wife to return to work. Mr Hextall alleged that the ‘provision, criterion or practice’ of only being paid statutory shared parental pay caused particular disadvantage to men and was unlawful discrimination.
The Court of Appeal decision addressed the direct and indirect sex discrimination claims as well as claims for equal pay.
The Court found that there is no direct sex discrimination in these cases as a man on shared parental leave is not comparable to a birth mother on maternity leave. Maternity leave offers special treatment to the mother for health and safety purposes after giving birth and recovery will take different women, different lengths of time. It is not solely subject to the initial compulsory 2 weeks maternity leave.
The Court found that it isn’t indirect discrimination to have a policy whereby men only received statutory pay on shared parental leave because, when compared to women, men were not placed at a particular disadvantage with that policy. In any event, such a policy would be justified as a proportionate means of achieving a legitimate aim which is to apply the policy of EU law to ensure special treatment of a mother relating to maternity.
The Court also found that an equal pay claim by men on shared parental leave would fail because sex equality does not apply where there is special treatment relating to maternity.
The Claimants are considering an appeal to the Supreme Court.
Shared parental leave has now been available to parents for 4 years. Initial take-up when the scheme launched was slow. Whilst usage has increased, it hasn’t been the sea change that many anticipated it would be.
There has always been a question mark where an employer enhances maternity pay to women but only pays statutory shared parental leave to men. Subject to any appeal to the Supreme Court, this decision settles that argument, reaffirming that women are entitled to special protection unique to having given birth.
You can read our summary of shared parental leave from April 2015 here.
If you would like any advice in relation to shared parental leave or discrimination or have any other employment law or HR queries, please contact our employment team on 01228 552600 or 01524 548494.