The Employment Appeal Tribunal (EAT) has dismissed a claim of sex discrimination from a father who claimed his employer should pay him the same enhanced pay as a female employee on maternity leave when he took shared parental leave.

In the case of Capita Customer Management Ltd v Ali the EAT was asked to consider whether it was sex discrimination for an employer not to pay a man who took shared parental leave following the birth of his child at the same rate as female employees who were on maternity leave. An employment tribunal found that the father had suffered sex discrimination. However, another tribunal held the opposite in the similar case of Hextall v The Chief Constable of Leicestershire Police.

The EAT has been asked to consider appeals from both tribunal cases and to give some much needed clarity to the legal position.

Facts of the case

The claimant’s daughter was born prematurely in February 2016. The claimant was entitled to two weeks’ fully paid paternity leave which he took immediately. Following a further week’s paid holiday he returned to work in March 2016. However, his wife had been diagnosed with post natal depression. Her medical advice was to return to work to assist her recovery. The claimant therefore wanted to take leave to care for his new born daughter to enable his wife to go back to work. Under Capita’s policy, he was entitled to take shared parental leave but this was only paid at the statutory rate. Having discussed with his female colleagues he discovered that they were entitled to full pay for 14 weeks’ maternity leave and he argued that he should be entitled to the same.

EAT’s decision

Overturning the employment tribunal’s original decision, the EAT allowed the appeal. The EAT confirmed that it was not direct sex discrimination to fail to pay a male employee enhanced shared parental pay when it did enhance the pay of women on maternity leave.

The EAT held that it was crucial to have regard to the purpose of maternity leave with pay which is the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. Although a mother will obviously care for her baby while on leave, that is a consequence not the purpose of maternity leave and pay. The purpose of shared parental leave was different, solely the care of the child.

The father’s circumstances in this case were therefore not comparable with a woman who had recently given birth (a crucial component of any sex discrimination claim). Shared parental leave is given on the same terms for men and women (a partner in a same sex couple is entitled to such leave, even if they are not the biological mother) and therefore the practice of paying mothers on maternity leave more than men on shared parental leave was not sex discrimination.

Comment

Ever since shared parental leave was first introduced, arguments have raged over the exact nature of the leave entitlement and the discrimination risk for employers in respect of different rates of pay paid to fathers on shared parental leave and mothers on maternity leave – a practice which is widespread. If this case is not appealed further then we appear to have an answer to those questions.

It appears that it is lawful for employers not to enhance pay for those taking shared parental leave, as long as both men and women taking shared parental leave are treated the same. This accords with the government’s expressed view at the time shared parental leave and pay was introduced. Had the decision been otherwise, the temptation for many employers may have been to reduce enhanced maternity pay so, hopefully, that has now been avoided and the decision gives employers some much needed certainty.