The Court of Appeal has ruled this week on the issue of whether men on shared parental leave should be paid the same as women on maternity leave. Their answer is a resounding no. This will be welcomed by many employers who may otherwise have faced the invidious decision as to whether they could afford to continue any enhanced maternity benefits at all, if they were effectively required to level up these benefits for those on shared parental leave.
The key issue being determined in the combined appeals of Capita v Ali and Hextall v Chief Constable of Leicestershire was whether it is unlawful discrimination on the basis of sex (whether direct, indirect, or equal pay) for men to be paid less on shared parental leave (SPL) than mothers are paid on maternity leave (ML).
The obstacles faced by the claimants in these cases were numerous. The primary reason that the claims failed is because under the Equality Act 2010, when looking at both direct discrimination and equal pay claims, no account can be taken of special treatment afforded to women in connection with pregnancy or childbirth. The CA did not accept the claimant’s arguments that the purpose of ML and SPL, after the first two weeks, is effectively the same - for the care of the child - and no longer caught by the special treatment exception. The CA found that ML is still a leave designed to protect the health and safety of the woman who has given birth and SPL is not a comparable form of leave.
The indirect discrimination claim failed as equal pay and indirect discrimination claims are mutually exclusive under the legislation. The CA did however say that they would have found against the claimants in relation to this in any event. Their view was that women taking ML are in a materially different position to men taking SPL and could therefore not be in the same ‘pool’ for comparison for the purposes of an indirect discrimination claim.
All these findings are comprehensively against the claimants. Whilst they had sought to argue that extended leave after childbirth should now be viewed as leave for childcare, rather than for health and safety reasons connected with pregnancy and childbirth, the CA did not accept this. The general take up of SPL has proved very low since its introduction and until greater parity is given to fathers in terms of stand-alone rights to leave and pay, it seems unlikely that this will change any time soon. Whilst this provides some certainty for now, the claimants are seeking leave to appeal to the Supreme Court, so this may not be the final word.