When shared parental leave was introduced in 2015, a key issue for some employers was whether paying enhanced maternity pay but only statutory shared parental pay put them at risk of a discrimination claim. A recent Court of Appeal decision has now confirmed that this should not amount to direct or indirect sex discrimination, and is not a breach of the equal pay requirements.

Ali v Capita Customer Management Ltd and The Chief Constable of Leicestershire Police v Hextall involved fathers who had either taken or wanted to take shared parental leave. Both would have been paid at statutory rates, whereas female employees taking maternity leave would have received enhanced pay. Mr Ali argued that this was direct sex discrimination, while Mr Hextall claimed equal pay and indirect sex discrimination.

The Court of Appeal dismissed all those claims:

  • It is not direct discrimination to pay maternity leave and shared parental leave at different rates because a woman on maternity leave is not a proper comparator for a man on shared parental leave. The purpose of maternity leave following childbirth is predominantly for health and safety reasons, not to allow a woman to care for her child.
  • Mr Hextall's challenge involved comparing two contractual pay schemes, so could only be brought as an equal pay claim, not as an indirect discrimination claim. The equal pay claim failed because enhanced maternity pay is special treatment in connection with pregnancy or childbirth. Such special treatment cannot be relied upon to show that a man's terms are less favourable than those of a woman.
  • Even if Mr Hextall had been able to pursue an indirect discrimination claim, he could not identify a PCP that placed him at a particular disadvantage – his challenge was really a complaint that only birth mothers are entitled to maternity leave and pay.
  • In any event, had there been a PCP giving rise to disadvantage, the Court of Appeal would have held that any disadvantage was justified. Special treatment of mothers in connection with pregnancy or childbirth is a proportionate means of achieving a legitimate aim.

The cases confirm the orthodox position that the proper comparator for a direct discrimination claim in this situation is a woman taking shared parental leave to care for her child, not a woman on statutory maternity leave. The Court of Appeal was unwilling to allow social policy considerations to trump existing European case law stressing that the reason for maternity leave is to protect a mother's biological condition following birth. Despite this, many employers will want to continue to use paid parental leave schemes to support all their working parents, regardless of gender.