UK: Shared Parental Leave (SPL) and Sex Discrimination

In two separate appeals heard together, the Court of Appeal has decided that two men, H and A, were not discriminated against when their respective employers failed to pay enhanced shared parental pay equivalent to the maternity pay that a woman on maternity leave for the same period would have received. They brought their claims on different legal grounds but the result was the same in both cases.

Direct discrimination – what is the purpose of the leave?
A said it was direct discrimination not to pay him the same as a woman on maternity leave. He accepted that there was a material difference in circumstances during the first two weeks of compulsory maternity leave which he accepted is aimed at protecting a woman’s health after childbirth, but argued that the purpose of maternity leave after that is the same as shared parental leave: childcare. The court rejected this. They said that the purpose of maternity leave is to protect a woman in connection with the effects of pregnancy and motherhood. This meant that the man had to compare his treatment with a female worker on SPL (not maternity leave). Since there would be no difference between the pay received by a man on SPL and woman on SPL, his appeal had to be rejected.

Equal Pay
A contractual difference in SPL pay between men and enhanced maternity pay for women is properly characterised as an equal pay claim, rather than an indirect discrimination claim. Although a term of an employment contract which provides women with a higher level of pay is clearly more favourable to women than men, the equal pay provisions don’t permit a man to make an equal pay claim based on more favourable terms which are enjoyed by a woman as a result of pregnancy or childbirth. Since these provisions are wide enough to include enhanced maternity pay, there is no claim for equal pay.

Indirect discrimination
Indirect discrimination is concerned with criteria, policies or practices which appear to be neutral but have the effect of disadvantaging employees of one sex, unless the employer can show that they are justified. The Court rejected Mr H’s indirect discrimination claim on the grounds that the legislation does not permit indirect sex discrimination claims which concern contractual terms which afford special treatment to women in connection with pregnancy or childbirth. Although not necessary for the purposes of the appeal, the Court still went on to consider the merits of the indirect discrimination claim. The Court came to some interesting conclusions:

• H’s true case was that men in his position were disadvantaged, not by the practice of paying only the statutory rate to those taking SPL, but by the fact that only a birth mother was entitled to statutory and contractual maternity pay
• The correct pool of individuals for comparison purposes must only contain persons whose circumstances are the same as, or not materially different from, the Claimant. Since women on maternity leave are materially different from men or women taking SPL, they should be excluded from the pool. Once such women are taken out, it is clear that H suffered no particular disadvantage compared to others in the pool
• Any disadvantage to H would have been justified as being a proportionate means of achieving the legitimate aim of the special treatment of mothers in connection with pregnancy and childbirth

The end result was that all claims were therefore dismissed.

Comment:
Employers who do not match enhanced maternity pay with shared parental pay will welcome this decision since it continues to confirm the UK Government’s original guidance that there is no legal reason to do so. This is not the end of the story however, since we understand the Claimants are seeking permission to appeal to the Supreme Court. Notwithstanding the legal position, enhancing SPL pay to match enhanced maternity pay will no doubt increase the take up of SPL and therefore encourage more men to share in the upbringing of their children.

Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall [LINK: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2019/900.html&query=(Ali)+AND+(v)+AND+(Capita)+AND+(Customer)+AND+(Management)+AND+(Ltd)+AND+(Chief)+AND+(Constable)+AND+(of)+AND+(Leicestershire)+AND+(v)+AND+(Hextall)]