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Is Enhanced Maternity Pay Discriminatory?

The Court of Appeal has confirmed that it is not discriminatory to pay men on shared parental leave less than an enhanced rate of maternity pay paid to women on maternity leave. In this article, Emma Roberts, looks at the case and highlights the key points to take away.


The Court of Appeal has given its judgment in the combined cases of Mr Hextall v Leicestershire Police and Mr Ali v Capita. The Court found that different rates of pay for mothers on maternity leave and fathers on shared parental leave is not unlawful sex discrimination – it is not direct, nor indirect discrimination, nor does it breach the equal pay requirements.

In April 2018, the EAT held in Mr Ali v Capita Customer Management Ltd that a father who wished to take shared parental leave was not directly discriminated against in not being entitled to the higher pay rate which the employer paid to employees taking maternity leave. The EAT concluded that Mr Ali could not compare himself with a woman on maternity leave given that maternity leave has a different purpose from shared parental leave. Maternity leave is for the health and wellbeing of the mother, whereas the purpose of shared parental leave is to care for the child. Mr Ali could compare himself with a woman taking shared parental leave, but that was given by his employer on the same terms for both men and women and there was therefore no direct discrimination.

In May 2018, the EAT handed down its judgement in Mr Hextall v Chief Constable of Leicestershire Police which also concerned the employer’s family leave policies. Enhanced pay was given for maternity leave, but not for shared parental leave. The issue in Hextall was indirect discrimination. The EAT held that the ET had erred in finding that Mr Hextall had not been indirectly discriminated against. It said that whilst women on maternity leave were not valid comparators for a claim of direct discrimination by a man in relation to shared parental leave, the ET had erred in applying that finding as a reason for rejecting the indirect discrimination claim. The correct pool for comparison for the purposes of an indirect sex discrimination claim was those with a present or future interest in taking leave to care for their newborn child.

Court of Appeal 

Both cases were heard in the Court of Appeal and in its judgment the Court confirmed that different rates of pay for new mothers and their partners does not constitute unlawful discrimination.

Direct Discrimination

The Court concluded that the primary purpose of maternity leave was not to facilitate childcare (as was the primary purpose of shared parental leave) but related to “other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner”. As a result of the different purposes of maternity leave and shared parental leave, it concluded that an appropriate comparator for Mr Ali would be a female worker who is on shared parental leave. As there was no difference between how a man on shared parental leave and a woman on shared parental leave were treated, the appeal failed.

Equal Pay

The Court found that Mr Hextall’s claim was properly brought as an equal pay or equality of terms claim. As the contract of employment for female police officers incorporated terms relating to maternity leave and maternity pay, under operation of the sex equality clause, corresponding terms should be incorporated into Mr Hextall’s contract of employment. However, the Court held that the sex equality clause does not apply to terms affording special treatment to birth mothers connected with pregnancy or childbirth. As a result, the appeal failed.

Indirect Discrimination

Following on from the Court’s finding that Mr Hextall’s claim was properly brought as an equal pay claim, the Court held that Mr Hextall was prevented from bringing a claim for indirect discrimination as a result of a specific exclusion in the Equality Act 2010. However, the Court still went on to explain why an indirect discrimination claim based on the arguments put forward would fail. The Court concluded that birth mothers on maternity leave should not be included in the pool of individuals to which a PCP relating to shared parental leave applies. However, even if birth mothers entitled to take maternity leave were included in the pool, the Court would find that the disadvantage argued by Mr Hextall was justified as being a proportionate means of achieving a legitimate aim; the aim being the special treatment afforded to birth mothers as a result of pregnancy and childbirth.

Moving Forward

Both Mr Ali and Mr Hextall are seeking leave to appeal to the Supreme Court so this may not be the final decision on this matter.

Ultimately the decision of whether to offer enhanced shared parental leave pay is personal to each business or organisation. The legal position is unlikely to be solely determinative for many, with cost and employee relations both being key considerations. However, this decision is obviously a welcome comfort for employers.

If you need help and advice regarding shared parental leave, please do not hesitate to contact me on 0113 350 4030 or at emma.roberts@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and litigation practice based in Leeds which advises clients nationwide. Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Emma Roberts
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Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

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