There has been confusion as to whether offering enhanced maternity pay but not offering enhanced shared parental pay would amount to discrimination.

The legislation states that there is no statutory requirement for employers to provide similar enhancements. Indeed the BIS technical guidance suggests that an employer may continue with an occupational maternity or paternity scheme without extending it to shared parental pay.

Despite this there are two conflicting Employment Tribunal decisions. See the employment briefing by Kaajal Nathwani.

The Employment Appeal Tribunal (the EAT) has confirmed in the case of Ali v Capita Customer Management that it it is not direct sex discrimination to offer enhanced maternity pay but not shared parental leave.

While shared parental leave is designed to give both parents the opportunity to participate in caring for their child during its first year, the operation of the scheme is dependent on the mother choosing to bring her maternity leave to an end.

The EAT held that the primary purpose of the maternity legislation is the health and wellbeing of the pregnant and birth mother. However, the reason for shared parental leave is for the care of the child.

The EAT noted that the Employment Tribunal had found that the hypothetical female comparator for Mr Ali was an employee caring for her child. The EAT therefore held that the correct comparator is a woman on shared parental leave, as the reason for shared parental leave was the care of the child rather than the health and wellbeing of the birth mother. Accordingly, Mr Ali was not subject to direct discrimination.