Discrimination in shared parental leave

Discrimination in shared parental leave

The Court of Appeal confirms: it is not discriminatory to pay enhanced maternity pay to a woman and only statutory pay to a man on shared parental leave.

This month the Court of Appeal determined the much awaited case of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall [2019] EWCA Civ 900 CA. These cases sought to deal with the question: is it discriminatory (directly and/or indirectly) for an employer to pay its male employees statutory pay only during shared parental leave, when it pays its female employees enhanced maternity pay? The Court of appeal has confirmed that it’s not discriminatory and it is for employers to decide whether or not to enhance contractual pay to employees on shared parental leave, where they already pay enhanced maternity pay. There is no statutory provision requiring them to do so.

The Court of Appeal held that a policy of paying full pay to women on maternity leave, but only two weeks’ full pay to men taking paternity leave and statutory pay during shared parental leave did not amount to discrimination. In making this decision it clarified that that the correct comparator for a man on shared parental leave is a woman on shared parental leave, not a woman on maternity leave. The Court of Appeal also explained its decision by recognising the purposes of maternity leave and pay, which include assisting the mother to recuperate from the effects of the pregnancy and childbirth. It did reject the argument that, after two weeks’ compulsory maternity leave, the subsequent maternity leave period was solely for the purpose of caring for the child and therefore comparable to shared parental leave.

The Court of appeal has also rejected any contention that such practice could constitute a potential equal pay claim. The Court of Appeal highlighted that the Equality Act 2010 allows for contractual terms to afford special treatment to women in connection with pregnancy or childbirth.

What does this mean for the future?

Whilst this case is a welcome clarification for employers and a potential cost saving for businesses, it is hard to ignore that it undermines the initial purpose of Shared Parental Leave in the first instance –  namely to give parents greater flexibility to share their childcare responsibilities. If employers continue to provide enhanced maternity pay but not during shared parental pay, where’s the incentive to for parents to share the 52 weeks leave available. This concern is clearly reflected in the statistics that remain relatively low in respect of the take up for shared parental leave.

For employers considering what family friendly benefits they should provide, it is worth considering the perception and wider benefits of creating greater equality for male and female employees seeking to take leave. Employers such as Virgin Media, KPMG and Netflix have been praised and recognised for its approach of treating parents equally and have reaped the rewards of doing so by achieving a more productive workforce, greater retention rates and loyalty.

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