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LEGAL UPDATE: Failure to Provide Enhanced Share Parental Pay is NOT Sex Discrimination

The Employment Appeal Tribunal (“EAT”) has decided that failure to pay a male employee enhanced shared parental pay, in circumstances where it paid enhanced pay to women on maternity leave, was not direct sex discrimination.  

In the case of Capita Customer Management Ltd v Ali, the EAT overturned the Employment Tribunal’s (“ET”) decision which had found sex discrimination on the basis that the claimant, who was planning to take shared parental leave, was entitled to compare himself with a woman taking maternity leave as they accepted that the main purpose of both types of leave was to care for the child. 

In this case, female employees were entitled to maternity pay comprising 14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay (SMP). Male employees were entitled to two weeks paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which ‘may or may not be paid’.  

After his daughter was born the claimant took two weeks’ paid leave. He was informed that he was eligible for shared parental leave (SPL) but would only be paid statutory shared parental pay (SPP). He accepted that during the two-week compulsory maternity period that special treatment was justified for women. However, he argued that after that period, maternity leave was about care for a child, in the same way as shared parental leave. Therefore, there was no justification for the lower level of shared parental pay under section 13(6)(b) of the Equality Act 2010, which provides that special treatment afforded to a woman in connection with pregnancy or childbirth does not give rise to direct sex discrimination against men. The ET agreed and found that he was subject to sex discrimination. 

In overturning the ET’s decision, the EAT held that the purpose of shared parental leave is different to maternity leave. The main purpose of the Pregnant Workers Directive (which underpins UK legislation) is the health and wellbeing of the pregnant birth mother and provides for minimum of 14 weeks’ maternity leave paid at least at the same level as statutory sick pay. The Parental Leave Directive is concerned with the care of the child and makes no provision for pay. 

Therefore, the correct comparator for the claimant in this case was a woman on shared parental leave, and in this case, she would have been treated equally in terms of leave and pay. In any event, the more favourable treatment given to women on maternity leave was rendered lawful by section 13(6)(b) of the Equality Act 2010.  

What next? 

The EAT’s decision is in line with both the government’s ‘Employers’ Technical Guide to Shared Parental Leave and Pay’ and a previous ET decision (Hextall v Chief Constable of Leicestershire Police). However, bear in mind the following: 

  • The tribunal’s decision in Hextall has been appealed and it will be interesting to see if the EAT takes the same approach on the facts of that case. 
  • Ali was only concerned with the first 14 weeks of leave. The EAT commented that after 26 weeks the purpose of maternity leave might change, in which case a valid comparison between a male employee on shared parental leave and an employee on maternity leave might be possible at that stage. 
  • There is the potential for an employee to bring an indirect sex discrimination claim based on a policy of receiving statutory shared parental pay, arguing that more men than women take up shared parental leave because women can access maternity leave. The indirect discrimination claims in Hextall failed but will be reconsidered by the EAT on appeal. 

It is helpful that the EAT has now provided guidance on this question, particularly as previously there were two conflicting tribunal decisions. However, the full picture will not be known until the judgment in Hextall is available.  

In the meantime, if you need help and advice in relation to shared parental leave, please do not hesitate to contact me or the employment team on 0113 350 4030 or at hello@scesolicitors.co.uk.

If you would like to be kept up to date with employment law and dispute resolution updates, please subscribe to our monthly newsletter.

SCE Solicitors is a boutique employment law 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.

Richard Newstead
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Richard Newstead

Richard qualified as a Legal Executive over 20 years ago and has significant experience in Employment law and Litigation. Richard acts for both employers and employees drafting and advising on settlement agreements, contracts of employment, consultancy agreements, directors service agreements and general workplace policies. He acts for commercial clients in the employment tribunal dealing with unfair dismissals, constructive dismissals and claims for discrimination.

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