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17 June 2019

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Failure to pay enhanced shared parental pay not sex discrimination

Posted by: Sarah Scholfield

Shared parental leave and pay was introduced in April 2015. It allows eligible mothers, fathers, partners and adopters to choose how to share paid time off work following the birth of a child. Statutory shared parental pay applies to both men and women who take shared parental leave and it mirrors the rate of statutory maternity pay. At the time there was some uncertainty as to whether employers who offered enhanced maternity pay would also need to offer enhanced shared parental pay to avoid any potential sex discrimination claims.

The Court of Appeal has recently handed down its decision in two cases that deal with this very issue: Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police [2019].

The cases

Mr Ali worked for Capita. New mothers at Capita were entitled to full pay for the first 14 weeks of maternity leave following which their pay would drop to the lower statutory maternity pay rate. Shared parental pay however was paid based on the statutory rate for the whole period. Mr Ali wanted to take shared parental leave and pay but argued that he ought to receive the same level of pay as a woman who was on maternity leave i.e. full pay for the first 14 weeks and statutory parental pay thereafter. Capita rejected his claim and he issued proceedings for direct discrimination on the basis of sex.

In the second case, Leicestershire Police’s maternity policy entitled new mothers to receive full pay for the first 18 weeks of maternity leave followed by statutory maternity pay. Shared parental pay however was limited to statutory pay. Mr Hextall alleged that the force’s policy of providing statutory parental pay only disadvantaged men and was therefore unlawful indirect sex discrimination.  The Chief Constable challenged the appeal on the grounds he asserted that Mr Hextall’s claim was actually one for equal pay.

Court’s decision

The Court rejected both Mr Ali and Mr Hextall’s claims and in doing so confirmed that paying men on shared parental leave less than women on maternity leave is not direct or indirect sex discrimination nor a breach of equal pay legislation.

In terms of Mr Ali’s claim the court confirmed that it is not possible to compare the treatment of a man on shared parental leave with a woman on maternity leave. Maternity leave is exclusively for mothers, and women on maternity leave are afforded special treatment for health and safety purposes, not just for childcare reasons. Shared parental leave however is solely for childcare purposes. As a result, the correct comparator for a man on shared parental leave is a woman on shared parental leave and as both men and women are paid the same, the direct discrimination claim failed.

With regards to Mr Hextall’s claim, the Court of Appeal agreed with Leicestershire Police that Mr Hextall had incorrectly labelled his claim and that he was in fact raising an equal pay claim. Mr Hextall did not succeed with his claim for equal pay as the law allows special treatment of women in connection with pregnancy or childbirth. The Court went on to consider whether a policy of paying men on shared parental leave statutory pay only could be indirect discrimination and it confirmed that it could not. It noted that women on maternity leave are substantially different from men or women taking shared parental leave and as such should not be included as a comparator.

Comment

This case is welcome news for employers as it makes it clear they are no under no obligation to enhance shared parental pay simply because they offer enhanced maternity pay. It comes with a word of caution however as both Mr Ali and Mr Hextall are seeking leave to appeal to the Supreme Court.

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Sarah is a Solicitor in our Employment Team. Sarah has extensive experience advising employers on a wide range of employment matters including unfair dismissal, discrimination and whistle blowing claims, drafting contracts of employment and dealing with disciplinary/grievance matters. She also regularly advises employees on settlement agreements, disciplinary/grievance matters and unfair dismissal. She is a member of the Employment Lawyers Association. Sarah has been described as “extremely knowledgeable… diligent, sharp” whilst retaining “that all important client focus”.

Sarah Scholfield - Associate

To discuss how Glaisyers can assist you contact Sarah Scholfield on ses@glaisyers.com or via 0161 832 4666.

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