Failure to pay men enhanced shared parental pay was not sex discrimination

If an employer offers enhanced maternity pay to women, does it need to enhance shared parental pay (ShPP) to avoid sex discrimination claims by men? 

When Shared Parental Leave was introduced, there was a lot of discussion about whether employers who offered enhanced maternity pay were obliged to match the same benefits to anyone taking Shared Parental Leave. The government view is there is no need to do so. However, the concern remained that an employer who enhanced a women’s maternity pay would discriminate against men if it failed to similarly enhance ShPP.

However, the Court of Appeal has just ruled that employers can offer enhanced maternity pay without the need to pay male employees enhanced ShPP.

Shared Parental Leave and Pay – the basics

Under Shared Parental Leave, maternity pay and leave can be converted into shared parental leave and pay. A mother can convert up to 50 weeks of her maternity leave to create weeks of shared parental leave that can be taken by her and/or her partner. Likewise, a mother can convert 37 weeks of maternity pay into statutory shared parental pay (ShPP) that can be claimed by her and/or her partner.

The Court of Appeal has ruled that it was neither sex discrimination nor a breach of the equal pay legislation for two employers in two separate cases not to pay male employees enhanced ShPP equivalent to the enhanced maternity pay offered to female employees.

Facts

Ali v Capita

Mr Ali was entitled to two weeks’ paternity leave at full pay and 26 weeks’ additional paternity leave paid at statutory ShPP. In comparison, female colleagues were entitled to 14 weeks’ maternity pay at full pay followed by 25 weeks’ statutory maternity pay.

ET

An employment tribunal upheld Mr Ali’s claim that the difference in the amount of pay amounted to direct sex discrimination. The EAT allowed Capita’s appeal and quashed the ET’s decision.

Hextall v Leicestershire Police

Mr Hextall took 14 weeks of shared parental leave during which he was paid statutory ShPP. In comparison, his employer offered female employees 18 weeks of maternity leave at full pay.

ET

An employment tribunal dismissed Mr Hextall’s claims that he had been discriminated against on the ground of sex.

Appeal

Mr Ali and Mr Hextall both appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed Mr Ali and Mr Hextall’s appeals.

Mr Ali

The Court of Appeal ruled that Mr Ali could not compare himself with a woman on maternity leave because the purpose of statutory maternity leave relates to matters exclusive to the birth mother resulting from pregnancy and childbirth, not shared by the husband or partner. The correct comparator in Mr Ali’s claim was a female worker who was on Shared Parental Leave. As that comparator would be paid the same as Mr Ali, his direct discrimination claim failed because he was not treated less favourably than the comparator.

Mr Hextall

The Court of Appeal ruled that Mr Hextall had incorrectly labelled his complaint as one of indirect sex discrimination when it was effectively a complaint about equal pay. As such, it could not succeed because equal pay legislation permits special (more favourable) treatment of women in connection with pregnancy or childbirth.  

Ali v Capita Customer Management Ltd; Chief Constable of Leicestershire Police v Hextall [2019] EWCA Civ 900

Comment

This ruling has been welcomed by many experts who had warned that, if the Court had ordered employers to increase the amount of ShPP paid to men to match maternity pay, some employers would have withdrawn enhanced maternity pay schemes, so that they did not have to match ShPP, and this could have undermined the protection maternity leave afforded women.

Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.