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28 May 2019

Modern fathers pay the price for family time


Paying men on shared parental leave less than women on maternity leave is not unlawful

Court of Appeal - Capita v Ali and Hextall v Chief Constable of Leicestershire

The Court of Appeal considered the combined appeals in these cases to determine whether it was unlawful discrimination on the basis of sex, either direct or indirect, or a breach of the principles of equal pay, for men who are on shared parental leave to be paid less than women who are on maternity leave.

The Court of Appeal, agreeing with the Employment Appeal Tribunal, determined that it was not.


Capita v Ali

Mr Ali was entitled to two weeks’ ordinary paternity leave and shared parental leave at statutory rates. Conversely, Capita’s enhanced maternity pay policy entitled mothers to 14 weeks’ basic pay and 25 weeks’ statutory maternity pay during maternity leave. Mr Ali alleged that Capita should provide enhanced pay for shared parental leave in the same way, and at the same level, that it provides enhanced maternity pay.

Hextall v Chief Constable of Leicestershire

Mr Hextall also alleged that paying him less for a period of shared parental leave in comparison with a woman on maternity leave was a form of unlawful discrimination. Mr Hextall argued that this was indirectly discriminatory as it was a provision, criterion or practice that put men, including himself, at a particular disadvantage compared with women in materially the same circumstances.

Direct discrimination

The Court of Appeal agreed with the Employment Appeal Tribunal’s view that the purpose of shared parental leave is different to the purpose of maternity leave, the former being to care for the child, and the latter to provide time for the mother to recover from pregnancy and childbirth. Accordingly the correct comparator for the purpose of Mr Ali’s direct discrimination claim was not a woman on maternity leave but a woman on shared parental leave. In such circumstances there would have been no disparity in pay and therefore the claim of direct discrimination must fail.

Equal pay

The Court of Appeal determined that a difference between the amount of shared parental leave pay for men and maternity pay for women was correctly characterised, in theory, as an equal pay claim.   However, again the court noted the difference between the purposes of shared parental leave and maternity leave and concluded that a contractual term relating to the former was not a provision which corresponded with a clause relating to a female employee’s entitlement to enhanced maternity pay.

In addition the Court also cited paragraph 2 of Schedule 7 of the Equality Act 2010 which provides that a sex equality clause ‘does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth’.

Accordingly, the equal pay claim failed.

Indirect discrimination

In light of the decision that Mr Hextall’s claim was actually one of equal pay he was precluded from bringing a claim of indirect discrimination under the provisions of the Equality Act 2010. However, the Court of Appeal went on to explain that it would have dismissed the indirect discrimination claim in any event, as the circumstances of birth mothers are materially different from those of parents on shared parental leave. Accordingly birth mothers should be excluded from the pool of persons which would be used demonstrate whether a provision, criteria or practice put men at a disadvantage to women.

The Court of Appeal went even further and said that in any event any disadvantage would have been justified as being a proportionate means of achieving a legitimate aim, being to allow mothers to recover from pregnancy and childbirth.

Looking forward

The Court of Appeal’s decision will no doubt come as a relief to those employers (of whom there are many) who offer enhanced maternity pay but who do not offer corresponding enhanced pay for periods of shared parental leave. It is now clear that doing so is not unlawful.  This is a reinforcement of the European legal principle that because only women give birth, they have a unique status in law and the protections which are afforded to them because of that unique status do not have to be extended to men.

On the flip side however, whilst commercially understandable, the lawful freedom that employers now definitively have to pay women on maternity leave more than men or women on shared parental leave means that the current low take-up of shared parental leave is likely to continue for the foreseeable future.

That really does not accord with the stated intentions of Government and the European Union to encourage fathers to take a greater (ideally equal) share in child-care responsibility from the outset.

If you have any questions, or would like any advice relating to family leave or other employment law matters, please contact Anne Pritam, Richard Freedman or your usual Stephenson Harwood employment contract.