EAT provides much needed clarity on discrimination risks associated with shared parental pay

Employers breathed a collective sigh of relief last week when the Employment Appeal Tribunal, overturning an earlier Tribunal decision, provided much needed clarity and found that Capita had not discriminated against one of its male employees, Mr Ali, by only offering to pay him shared parental leave pay at the statutory rate (currently £145.18 a week), when it paid enhanced maternity pay to female co-workers for the same period of time off.

Mr Ali applied to take 12 weeks’ shared parental leave very shortly after the birth of his child as his wife was advised to go back to work for medical reasons.  At the time, Capita’s maternity policy was to pay enhanced maternity pay for the first 14 weeks of maternity leave.  Mr Ali asserted that by only offering him pay at the statutory rate for the 12 week period, in comparison to female colleagues who would, during the same period on maternity leave, have received full pay, he had been subject to direct sex discrimination.  The Tribunal agreed, and said that it was legitimate for Mr Ali to compare himself to a woman on maternity leave.   The EAT disagreed, and this was the crux of Capita’s successful appeal.  The EAT determined, relying on the Pregnancy Workers Directive, that the purpose of maternity leave / maternity pay was not to care for the child (which was the purpose of shared parental leave), but for the health and wellbeing of the mother after childbirth and therefore the Tribunal (and Mr Ali) had made an erroneous comparison in reaching their decision. The correct comparator was a woman on shared parental leave, and, as Mr Ali had been treated identically to a woman who would have been on shared parental leave, so there was no basis for claiming unlawful discrimination.

This is a helpful and welcome decision and is likely to put paid to any plans by employers to offer enhanced shared parental pay in the short term.  However, it is important to appreciate that Mr Ali’s claim related to a request for shared parental leave in the 12 week period immediately following the 2 weeks’ compulsory maternity leave period.  The EAT’s decision is fact-specific in that sense.  The EAT were more sympathetic to an argument that after a period of 26 weeks, the purpose of maternity leave may change from biological recovery from childbirth, to one of caring for the child, at which point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave.  For any employers who offer enhanced maternity pay extending beyond 26 weeks’ maternity leave, and who do not offer enhanced shared parental pay on an equivalent basis, we would recommend you evaluate whether to continue that approach in light of this decision as there is a reasonable prospect that that practice could be found to be directly discriminatory in future.  For further advice on Shared Parental Leave or Pay, please contact Tiggy or Emma.

Click here to read the judgement in full.



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