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Not paying enhanced shared parental pay is not sex discrimination says EAT

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 purpose of maternity leave and pay is different from that of shared parental leave and pay.
  • Maternity leave and pay is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth.
  • The purpose of shared parental leave and pay is to care for a child.
  • As those purposes are different Mr Ali's circumstances could not be comparable with that of a woman on maternity leave who had recently given birth.
  • A mother on maternity leave will of course care for her child but that is a consequence and not the purpose of maternity leave and pay.
  • The employment tribunal was wrong to hold that the enhanced maternity pay did not fall within the Equality Act's exception for different treatment on the grounds of sex which could be attributed to special treatment in connection with pregnancy and childbirth.
  • The entitlement to pay depends upon, and is inseparable from, the type of leave taken.
  • Leave for a parent of either sex to care for their child would be shared parental leave. As such, the correct comparator in this case is a woman on shared parental leave (not a woman on maternity leave).
  • Shared parental leave and pay was given by the employer on the same terms for men and women.
  • As such, Mr Ali had not been discriminated against on the grounds of sex by being entitled to shared parental leave at the pay rate appropriate for such leave.

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

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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