Court of appeal ruling makes it more difficult for parents to share parental leave

Paying male employees taking shared parental leave less than female colleagues taking maternity leave does not amount to direct or indirect discrimination, the Court of Appeal has ruled.

Legislation introduced in April 2015 allows parents to share 50 weeks’ leave and 37 weeks’ pay following the birth of a child.

However, many employers who provide enhanced rates of maternity pay (typically six or nine months’ full pay) only pay Shared Parental Leave (SPL) at the statutory rate, which is usually much lower (£148.68 a week or 90% of your average weekly earnings, whichever is lower).

This means that for many parents it does not make financial sense to use SPL. According to the most recent statistics, take up of SPL could be as low as 2%.

Ali v Capita

The claimant, Mr Ali, wanted to take SPL when his wife’s doctor advised her to return to work after two weeks’ maternity leave.

Mr Ali’s employer, Capita, paid male employees full pay for two weeks following the birth of the child, but paid only statutory SPL pay for the following 12 weeks.

Women working for Capita who take maternity leave are entitled to full pay for 14 weeks.

Mr Ali successfully argued at the employment tribunal that this amounted to direct discrimination.

Capita appealed to the employment appeal tribunal which said that a woman on maternity leave could not be compared to a man on SPL because the purpose of paid maternity leave is for the health and wellbeing of a woman.

Mr Ali then went to the Court of Appeal to challenge the EAT’s decision.

But the court agreed with the EAT. It said that the proper comparator for a claim of direct discrimination would be a woman on SPL. Therefore, there was no less favourable treatment and the direct discrimination claim failed.

Chief Constable of Leicestershire Police v Hextall

The facts in Mr Hextall’s case were similar to Mr Ali’s. Under Leicestershire Police’s maternity policy, women were entitled to 18 months’ leave on full pay, whereas SPL was paid at the statutory rate.

Mr Hextall brought a claim for indirect sex discrimination. He argued that the rate of pay for SPL put men at a disadvantage because, unlike female members of staff who could opt for maternity leave on enhanced pay, male colleagues had no choice but to accept statutory pay if they wished to take leave to care for their child.

Mr Hextall was unsuccessful at the employment tribunal – it said that women on maternity leave were not valid comparators.

Mr Hextall then went to the EAT which said the pool for comparison should have included men and women with an interest in taking leave to care for their newborn child.

The EAT said Mr Hextall had suffered indirect sex discrimination. Leicestershire Police disagreed and took the case to the Court of Appeal.

The Court of Appeal said this was an equal pay claim. Because there is a specific clause in the Equality Act affording special treatment to women during maternity, the claim could not succeed.

It said that because equal pay claims and discrimination claims are mutually exclusive, the indirect discrimination claim could not proceed and it would have failed because much like Mr Ali’s case, a woman on maternity leave cannot be compared to a man on SPL.

Prospect view

Prospect legal officer Frances Cusack said: “The decisions are disappointing and will do nothing to increase the number of workers taking shared parental leave.

“Both claimants have applied for leave to appeal to the Supreme Court, so this is unlikely to be the end of the story.”

Before these decisions, Prospect had brought two employment tribunal cases challenging an employer’s failure to pay equivalent SPL to fathers. Both cases settled shortly before the final hearing. But as the law stands now, it will be difficult to challenge such a policy.

“Prospect supports the special treatment afforded to women in connection with pregnancy or childbirth. But we welcome all efforts to give parents greater choice about how to manage childcare,” said Frances.

“Where possible, we will still try to negotiate better SPL policies with employers that are fair for all workers and avoid costly litigation.

“More importantly, increasing shared parental pay to match enhanced maternity pay will help to level the playing field when making decisions about career and family life,” she concluded.

You can read the full judgement here.