The Court of Appeal has given its judgment in the combined cases of Hextall v Leicestershire Police and Capita v Ali and another. The Court found that different rates of pay for mothers on maternity leave and fathers on shared parental leave is not unlawful sex discrimination – it is not direct, nor indirect discrimination, nor does it breach the equal pay requirements.

The decision reaffirms the purpose of maternity leave as for the protection of the mother’s health during pregnancy and thereafter and also for the protection of the special relationship between mother and child during the period following childbirth. The Court’s decision also dismisses the argument that, at some point during the 52 week maternity leave period, the purpose of the leave changes from being health and safety related to being for the purposes of caring for the child.

Subject to the Supreme Court confirming the position, it is looking increasingly certain that employers are able to treat maternity leave and pay differently from shared parental leave and pay, without the risk of male employees alleging discrimination.

Background

In April 2018, the EAT held in Capita Customer Management limited v Ali that a father who wished to take shared parental leave was not directly discriminated against in not being entitled to the higher pay rate which the employer paid to employees taking maternity leave. The EAT concluded that Mr Ali could not compare himself with a woman on maternity leave given that maternity leave has a different purpose from shared parental leave. Maternity leave is for the health and wellbeing of the mother, whereas the purpose of shared parental leave is to care for the child. Mr Ali could compare himself with a woman taking shared parental leave, but that was given by his employer on the same terms for both men and women and there was therefore no direct discrimination (see our previous article).

Separately, in May 2018, the EAT handed down its judgement in Hextall v Chief Constable of Leicestershire Police which also concerned the employer’s family leave policies. Enhanced pay was given for maternity leave, but not for shared parental leave. The issue in Hextall was indirect discrimination. The EAT held that the ET had erred in finding that Mr Hextall had not been indirectly discriminated against. It said that whilst women on maternity leave were not valid comparators for a claim of direct discrimination by a man in relation to shared parental leave, the tribunal had erred in applying that finding as a reason for rejecting the indirect discrimination claim. The correct pool for comparison for the purposes of an indirect sex discrimination claim was those with a present or future interest in taking leave to care for their new-born child (see our previous article).

Court of Appeal

Both were cases were heard in the Court of Appeal on 1 and 2 May 2019. On 24th May 2019, the Court of Appeal handed down its judgment and confirmed that different rates of pay for new mothers and their partners does not constitute unlawful discrimination.

Direct discrimination

The Court held that Mr Ali’s claim failed because his circumstances were materially different from the circumstances of mothers on maternity leave. Maternity leave and pay are afforded to new mothers to assist them with recovering from the physical and psychological effects of pregnancy and childbirth. Mr Ali was incorrect to claim that the only purpose of maternity leave after the compulsory two week period is to facilitate childcare. Neither the introduction of shared parental leave in the UK, nor subsequent developments in EU law and policy, had changed the purpose of maternity leave and pay. The proper comparator for the purposes of a direct discrimination claim is a female employee on shared parental leave, and there was no difference in treatment between Mr Ali and such an employee.

Equal pay

At the EAT, Hextall’s claim had been one of indirect discrimination. However, before the Court of Appeal, the employer agreed that as the claim was about discriminatory rates of pay, the claim should be characterised as an equal pay claim. In essence, Mr Hextall’s case was that there was a breach of his terms of work as modified by the sex equality clause implied into all terms of work by the Equality Act. Where two employees of different sexes have different terms of work, the sex equality clause operates to upgrade the less favourable terms to be as favourable as those that apply to the advantaged employee. Mr Hextall’s claim was that his terms of work had been modified by the sex equality clause to include a term entitling him to take leave to care for his newborn baby at the same rate of pay as mothers taking maternity leave.

The Court of Appeal found that this claim failed because the Equality Act provides that the sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth.

Indirect discrimination

The Court held that claim for indirect discrimination cannot be brought where the claim is an equal terms claim, even if the equal terms claim fails because of the application of the statutory exception. As such, the Court said it was not necessary for it to decide on Hextall’s indirect discrimination claim. However, it did comment that , had it been relevant, the claim would have failed because the material difference between Mr Hextall and a new mother meant there was no valid comparison between them for the purposes of establishing a particular disadvantage to male employees.

Note that both as both Ali and Hextall are seeking permission to appeal, the Supreme Court may have the opportunity to provide a final resolution to this issue in due course.