Shared Parental Leave and Sex Discrimination

28 May 2019

The Court of Appeal in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall has held that it is not discriminatory to pay men on shared parental leave less than an enhanced rate paid to women on maternity leave, whether the claim is expressed as direct or indirect discrimination or equal pay.


There were various claims put forward by both Claimants. Daniel Barnett’s employment law bulletin explains the Court of Appeal’s decisions as follows:


Direct Discrimination


The exception to a comparison between employees for "special treatment afforded to a woman in connection with pregnancy or childbirth" is wide enough to include enhanced maternity pay. The minimum of 14 weeks' leave required by the Pregnant Workers Directive is not enough to change the position after 14 weeks and:


"The predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner."


Men on parental leave and women on maternity leave are therefore not in comparable positions for the purposes of Equality Act 2010.


Equal Pay


A contractual difference in shared parental leave pay between men and enhanced maternity pay for women is properly be characterised as an equal pay claim. The clause in a contract providing women with a higher level of pay is more favourable to women than men.


The Equality Act 2010, however, provides that the sex equality clause implied into contracts of employment does not apply where discrimination is specifically excluded elsewhere in the Act. Paragraph 2 of Schedule 7 to the act says:


"A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth."


For the same reasons as direct discrimination, that is wide enough to include enhanced maternity pay. As a result, there is no claim for equal pay as it is specifically excluded by Equality Act 2010.


Indirect discrimination


There is a specific exclusion for indirect discrimination claims where they would be equal pay claims except for a specific exception. The exception for equal pay in paragraph 7 of schedule 2, therefore, means that an indirect discrimination claim cannot be brought either.


The end result is that all of the Claimants' grounds of appeal were dismissed and one of the Respondent's cross-appeals was allowed. All claims were therefore dismissed.


According to People Management, a number of experts have said firms will see the judgment as positive because a ruling in the opposite direction could have seen many employers pulling their enhanced maternity packages.