Shared parental leave and payJun 20, 2019
Is it discriminatory to pay men on shared parental leave less than women who are receiving enhanced pay on maternity leave? A look at the Court of Appeal’s decision in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall.
Mr Ali and Mr Hextall were two men who brought claims for sex discrimination against their respective employers. Both men elected to take shared parental pay, which was paid at the statutory rate, and complained that their employers’ decision to pay new mums an enhanced rate of pay on maternity leave was discriminatory.
The short answer to the question at the beginning of this article: is it discriminatory to pay men on shared parental leave less than women who are in receipt of enhanced maternity pay is no, it is not, so there is no need to overhaul your policies and procedures, but the Court of Appeal’s reasoning for this is interesting.
Mr Ali and Mr Hextall argued that paying the differing rates was less favourable treatment and, therefore, direct sex discrimination. A direct sex discrimination claim requires a comparator: this could be a real or hypothetical person, who you can point to in order to say you are being treated less favourably than them. The golden rule? The comparator must be like for like: this means that except for the existence of the protected characteristic (in this case, sex), there must be no material difference between the circumstances of the person bringing the claim and the comparator. Mr Ali and Mr Hextall argued that the comparator was a female employee who was on maternity leave. This was because they argued that maternity leave and shared parental leave (excluding the compulsory two – four weeks after birth, when a new mum can’t legally work (4 weeks if working in a factory)) was for the same purpose: facilitating childcare.
But, what did the Courts say?
The Court of Appeal disagreed with this, finding that the purpose of maternity leave was a lot more than facilitating childcare: for example, its purpose included enabling new mums to recuperate from the effects of childbirth and to breastfeed.
The Court of Appeal therefore found that men on shared parental leave and women on maternity leave were not in comparable positions and, as a result, there was no direct sex discrimination. The correct comparator was a woman taking shared parental leave and, of course, she would be paid the same as men.
In our view, this is a sensible decision and the appropriate interpretation of the law. From a purely commercial perspective, there was a risk that, had the court found that shared parental leave was required to match enhanced maternity leave, that employers may have not been able to afford the additional cost burden and simply reduced their maternity entitlements, which would have been to no-one’s benefit.