Enhancing maternity pay but not shared parental pay is not direct sex discrimination

Employers who enhance pay during maternity leave but not during shared parental leave are not directly discriminating against men.   

Facts

In Capita Customer Management Ltd v Ali, Capita enhanced maternity pay but not shared parental pay.  Women on maternity leave received 14 weeks’ full pay, followed by 25 weeks’ basic rate Statutory Maternity Pay. When Mr Ali’s daughter was born, he took two weeks’ ordinary paternity leave and was paid full pay. His wife was diagnosed with post-natal depression and returned to work (with another employer). Mr Ali wished to take further leave to look after his daughter. Capita told him he could take shared parental leave but they would only pay him at the statutory rate of Shared Parental Pay. 

Mr Ali claimed sex discrimination, arguing that he should receive the same pay as a woman on maternity leave.  

Decision

The employment tribunal upheld his claim but the Employment Appeal Tribunal (EAT) has now overturned the tribunal’s decision.  

When comparing the treatment of a man and a woman in a case of sex discrimination, there must be no material difference between their circumstances.  However, the EAT ruled that the circumstances of a woman on maternity leave are different to those of a man on shared parental leave. The purpose of maternity leave is to enable the mother to recover from giving birth and to bond with her child, whereas the purpose of shared parental leave is childcare.  The correct comparator for Mr Ali was a woman on shared parental leave.  As a woman on shared parental leave would have been paid the same as him, there was no direct discrimination.  

Even if the correct comparator was a woman on maternity leave, Capita’s more favourable treatment of women on maternity leave was special treatment afforded in connection with pregnancy/childbirth which has to be disregarded when looking at whether a man has been discriminated against. 

Implications

Employers can enhance pay for women on maternity leave without having to enhance pay for employees on shared parental leave.  However, they must pay men and women on shared parental leave the same – so they cannot enhance pay for women on shared parental leave but not men.  

The EAT suggested that after 26 weeks the purpose of statutory maternity leave might change from allowing the mother to recover from the birth and bond with her child to caring for her child.  At that point it considered that it may be possible to compare a man’s treatment while on shared parental leave with a woman’s treatment while on additional maternity leave.  If that’s right, it is possible that employers who enhance maternity pay during additional maternity (i.e.after 26 weeks' leave) could still face claims of direct sex discrimination if they do not enhance pay during shared parental leave.  However, European case law suggests that that may not be right and that the whole of the 52 weeks’ maternity leave provided in the UK is for health and safety purposes.  

The same EAT heard an appeal in another case, Hextall v Chief Constable of Leicestershire, where it was argued that cases like this could give rise to indirect sex discrimination.  The EAT has not given its judgment in that case yet.