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The Court of Appeal has ruled that paying a father (on shared parental leave) less than a mother (on maternity leave) was not discriminatory, nor would it be grounds for an equal pay claim.

Facts

In Ali v Capital Customer Management Ltd and Chief Constable of Leicestershire v Hextall, the Court of Appeal considered two cases together. This article focuses on the judgment relating to Ali v Capital Customer Management Ltd.

Mr Ali’s wife was diagnosed with post-natal depression and was advised to return to work. In order to support his wife’s return to work, Mr Ali requested shared parental leave from his employer, Capital Customer Management Ltd, so that he could look after their baby.

After being granted shared parental leave, Mr Ali became aware that female employees taking maternity leave received their enhanced maternity pay of 14 weeks’ full salary. Mr Ali requested that he also receive his full salary for 14 weeks while on shared parental leave.

Capital Customer Management Ltd refused this request and explained to Mr Ali that, under the shared parental leave policy, he was only entitled to the statutory rate of pay while on shared parental leave. Mr Ali submitted a formal grievance alleging sex discrimination.

In his claim, Mr Ali acknowledged that the purpose of compulsory maternity leave is connected to the wellbeing of the mother following childbirth and therefore he could not compare himself to a mother during this period.

However, Mr Ali maintained that paying female employees enhanced maternity pay for the following 12 weeks, but not offering the same to male employees under shared parental leave, was discriminatory.

Judgment

The Court of Appeal noted that the entire period of maternity leave “is for more than just facilitating childcare” and relates to the health and safety of the mother. This is in contrast to shared parental leave, which is predominantly to facilitate childcare arrangements for new-born children.

As such, the Court stated that there was a material difference between the purposes of a female on maternity leave and a male on shared parental leave. Accordingly, Mr Ali could not compare himself to a woman on maternity leave for the purposes of a direct discrimination claim. The correct comparator for a direct discrimination claim would have been a female employee on shared parental leave.

Points to Note

  • Paying women on maternity leave more than parents on shared parental leave is not discriminatory as the purpose of maternity leave is materially different to the purpose of shared parental leave; and
  • Paying women on maternity leave more than parents on shared parental leave will not be sufficient grounds for an equal pay claim, as the law specifically provides for employers to make exceptions for pregnant women, those who have recently given birth and also those who are breastfeeding.

The decision may, initially, seem at odds with discrimination legislation, however there was perhaps a public policy reason for this. Arguably, if the Court had ruled that shared parental pay must match enhanced maternity pay, employers may have been deterred from offering enhanced maternity pay at all.

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