The EAT has ruled that it is not direct sex discrimination for an employer to pay full basic pay for the first 14 weeks of maternity leave but only the statutory minimum rate of pay for shared parental leave. A father taking shared parental leave was not in a comparable position to a woman taking maternity leave and, in any case, the enhanced maternity pay fell within the provisions of the Equality Act allowing special treatment of women in connection with pregnancy or childbirth. We still await the EAT's decision in a separate case on whether a policy of enhancing maternity pay but not shared parental pay might be indirect discrimination.
In Capita Customer Management v Ali, the claimant wanted to take shared parental leave to care for his newborn baby after his wife was diagnosed with post natal depression and advised to return to work early. His employer informed him that he would be paid at the statutory minimum rate if he took shared parental leave. He argued that this was direct sex discrimination since the employer's policy was to pay mothers taking maternity leave their full basic pay for the first 14 weeks.
The Tribunal upheld his claim on the basis that, after the two week compulsory maternity leave period, woman on maternity leave and men on shared parental leave were in a comparable position since they were both taking leave to look after the baby, and there was no reason why preferential treatment of women should apply beyond the two week compulsory period.
The EAT overturned the Tribunal's decision. In the EAT's view, the purpose of maternity leave is to safeguard the health and wellbeing of a pregnant woman, or one who has recently given birth and/or who is breastfeeding. The purpose of shared parental leave is to care for the baby. The correct comparator for the purposes of the claimant's claim was a woman taking shared parental leave. She would also have been paid at the statutory minimum rate of pay, so the claimant had not been discriminated against on grounds of sex.
Alternatively, the EAT ruled that 14 week's full pay for women taking maternity leave fell within the exception in the Equality Act allowing special treatment of women in connection with pregnancy or childbirth.
This decision will come as a relief to employers who want to remain in control of whether and to what extent they should enhance pay for employees taking shared parental leave. However, it leaves some questions unresolved:
- First, the employer in this case provided enhanced maternity pay for 14 weeks, which is exactly the same length of time as the period of maternity leave required by the Pregnant Workers Directive. What if an employer enhances maternity pay beyond 14 weeks? The charity Working Families intervened in this case and suggested that, after 26 weeks, the purpose of maternity leave may change from biological recovery and it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave. The EAT also agreed that this may be the case, but did not need to make a ruling on it.
- Does it make a difference if the challenge is brought as an indirect discrimination claim, rather than a direct discrimination claim? This question is due to be considered in a separate case (Hextall) where judgment is expected shortly.
The question of enhanced pay for fathers taking time off to care for their babies has also come up in the context of the debate over how to narrow the gender pay gap, and the Women and Equalities Committee has recently called for new fathers to be given the right to 12 weeks' leave on full pay - see here for more details.