Is failing to offer enhanced shared parental pay discriminatory?

  • Insight

04 July 2018

Capita v Ali and Hextall v Chief Constable of Leicestershire Police

In two cases, the Employment Appeal Tribunal (“EAT”) has considered whether failure to offer enhanced shared parental pay amounts to sex discrimination.

What was the background?

In the Capita case, the Claimant was entitled to 2 weeks’ paid paternity leave, following which he could take shared parental leave paid at the statutory rate of pay. A female employee on maternity leave working for the same company was entitled to an enhanced maternity rate of 14 weeks’ full pay. The Claimant claimed that this was directly discriminatory on the grounds of sex. The Hetall case involved similar facts. It was accepted that during the first 2 weeks following the birth of a child, there is a material difference between men and women because the mother is legally required to take compulsory maternity leave during that 2 week period.

What was decided?

Direct discrimination

The EAT held in both cases that there had been no direct sex discrimination as men and women taking shared parental leave would receive the same rate of pay. The primary purpose of both EU and domestic legislation is to protect the health and wellbeing of the pregnant and birth mother. Maternity pay is accordingly given to the mother to enable her to take leave for her own health and wellbeing. By contrast, the purpose of shared parental leave is for the care of the child. As such, in both cases, the EAT disagreed that a male taking shared parental leave could compare himself to a woman taking maternity leave. The correct comparator is a woman on shared parental leave.

Indirect discrimination

However, although there was no direct discrimination against men, it may be the case that the difference in pay rates between maternity pay and shared parental pay indirectly impacted upon men (who could not take maternity leave an therefore could not be paid maternity pay). The EAT ordered that the indirect sex discrimination claim be re-heard in the Employment Tribunal. It remains to be seen whether the claim of indirect sex discrimination will succeed. It remains open to the Tribunal to hold that an employer’s failure to pay enhanced shared parental pay, where it pays enhanced maternity pay, amounts to indirect sex discrimination.

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