There is no statutory obligation to do so. However, there is a concern that failing to enhance shared parental pay where enhanced maternity pay is offered could lead to sex discrimination claims. This question was considered recently by the Employment Appeal Tribunal in Capita Customer Management v Ali.
Mr Ali wished to take shared parental leave following the birth of his child to enable his wife to go back to work. He was offered statutory shared parental pay. A woman on maternity leave for the same period would have received enhanced pay (14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay).
Mr Ali accepted that special treatment was justified for women during the two week compulsory maternity period. However, he claimed direct sex discrimination in respect of the 2-14 week post-birth period.
The EAT decided (overturning the employment tribunal decision) that it was not discriminatory to offer enhanced maternity pay but only statutory shared parental pay:
- The primary purpose of maternity leave is the health and wellbeing of the mother; whereas the purpose of shared parental leave is the care of the child;
- On this basis, a male employee could not compare himself with a woman on maternity leave;
- The correct comparator was a woman on shared parental leave, who would have been given shared parental leave on the same terms;
- Therefore, there was no direct sex discrimination.
The EAT’s decision is in line with both the government’s ‘Employers’ Technical Guide to Shared Parental Leave and Pay’ and a previous employment tribunal decision (Hextall v Chief Constable of Leicestershire Police). However, bear in mind the following:
- The tribunal’s decision in Hextall has been appealed and it will be interesting to see if the EAT takes the same approach on the facts of that case.
- Capita Customer Management v Ali was only concerned with the first 14 weeks of leave. The EAT commented that after 26 weeks the purpose of maternity leave might change, in which case a valid comparison between a male employee on shared parental leave and an employee on maternity leave might be possible at that stage.
- There is the potential for an employee to bring an indirect sex discrimination claim based on a policy of receiving statutory shared parental pay, arguing that more men than women take up shared parental leave because women can access maternity leave. The indirect discrimination claim in Hextall failed but will be reconsidered by the EAT on appeal.
It is helpful that the EAT has now provided guidance on this question, particularly as previously there were two conflicting tribunal decisions. However, the full picture will not be known until the judgment in Hextall is available. We will issue another update at that stage. In the meantime, if you would like to discuss your particular circumstances and the level of risk, please get in touch with your usual Brodies contact.