The EAT has held that not paying enhanced shared parental pay where maternity pay is enhanced is not sex discrimination.
Last year, at employment tribunal level, Mr Ali was successful in his claim for direct sex discrimination – see our previous legal briefing on the decision here.
However, in the judgment released today in Capita Customer Management Ltd v Ali the EAT has allowed Capita's appeal and set aside the employment tribunal decision.
This decision is on the basis that:
The EAT seemed to agree with the written submissions of Working Families, which intervened in the proceedings, that after a period of 26 weeks the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child, at which point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave. However, on the facts of the case, the enhanced maternity pay was for the 12 weeks following the 2 weeks of compulsory maternity leave, and so the 26 week point was not considered further.
This appeal is linked to that of Mr A Hextall v The Chief Constable of Leicestershire Police, which at employment tribunal level came to a different conclusion, holding that it was not discriminatory for a police force to give a period of full pay to mothers on maternity leave, but pay only statutory shared parental pay to partners.
We await the judgment in Hextall. However, on the basis of the Ali judgment, we anticipate that Mr Hextall's appeal will be dismissed.
Contributor: Amy Whiting
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