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Published 29 May 2019
The Court of Appeal has comprehensively dismissed the proposition that male employees taking Shared Parental Leave can compare themselves with female employees taking Statutory Maternity Leave for the purposes of pay.
Since the introduction of Shared Parental Leave (SPL) in 2015, take-up has been notoriously low, with perhaps no more than 2% of eligible parents taking advantage of the new scheme. A number of explanations for this have been put forward for this, one of which is that shared parental pay (ShPP) is paid at a maximum rate of £148.68 per week. That figure compares unfavourably to the more generous schemes for statutory and (in many larger employers) contractual maternity pay, and only a minority of employers have decided to enhance the rate of ShPP.
In two appeals, decided this week by the Court of Appeal, the broad fundamental question was whether men taking SPL should be entitled to the same benefits as women taking maternity leave. Mr Ali and Mr Hextall, who were employed respectively by Capita and Leicester Police, took different approaches to this issue in their claims.
Mr Ali claimed that he had suffered direct sex discrimination, on the basis that women in the same part of the business were entitled to generous contractual maternity pay, whilst, as a man, he would only be entitled to statutory ShPP if he took time off to care for his daughter. The employment tribunal upheld his claim.
Mr Hextall’s claim included direct discrimination but, in addition, because men only had the option of SPL and statutory ShPP, whereas women could choose between SPL or a period of maternity leave on full pay, he claimed that men were at a disadvantage amounting to indirect sex discrimination. The employment tribunal dismissed all of his claims, ruling that a woman on maternity leave was not a valid comparator in a direct discrimination claim, and that men were not particularly disadvantaged by receiving ShPP when on SPL.
Both claims came before Mrs Justice Slade in the EAT, who agreed with the Tribunal in Hextall that, in a direct discrimination claim, a woman on maternity leave cannot be relied on as a comparator by a man seeking SPL, which is available on the same terms to men and women. Capita’s appeal against the ET judgment in favour of Mr Ali therefore succeeded. However, Slade J found that the tribunal had applied the wrong test for disparate impact between men and women when dismissing Mr Hextall’s claim of indirect sex discrimination, which was therefore sent back to a new tribunal for re-hearing. The matter then came before the Court of Appeal.
The Court of Appeal has now ruled that men taking SPL cannot compare themselves to women taking statutory maternity leave. Fundamentally, the Court concluded that maternity leave fulfils a range of different purposes to SPL, for example to allow mothers to recuperate from the effects of childbirth and to develop the special relationship between the mother and the newborn child. In doing so, the Court rejected the contention that the predominant purpose of both SPL and maternity leave is to facilitate childcare.
The Court went on to comprehensively dismiss Mr Hextall’s claim of indirect discrimination, holding that that mothers taking maternity leave cannot be included in the pool for assessing disparate impact between men and women given the special protection afforded to them. The Court went on to state that even if indirect discrimination could be made out, the difference in treatment was justified for the same reason.
The Court of Appeal’s decision will come as a relief for those employers who offer enhanced maternity schemes for their female employees, but offer only the statutory rate of ShPP for male employees who decide to take SPL. It is clear now that male employees cannot claim enhanced pay in this scenario. In many ways, the Court’s decision is unsurprising given the consistent recognition in both European and domestic law of the unique position of mothers in the period before and after childbirth. Indeed, had the Court reached the opposite conclusion, an unintended consequence would have been for some employers to withdraw their enhanced maternity schemes.
More broadly, employers may wish to consider enhancing their SPL schemes for employees of both genders in order to increase the rate of uptake, however based on this decision there is no compulsion to do so.
It remains to be seen if this matter is the subject of a further appeal to the Supreme Court.
Ali v Capita Customer Management Ltd and The Chief Constable of Leicestershire Police v Hextall.
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