The EAT has decided that failure to pay a male employee enhanced shared parental pay, in circumstances where it paid enhanced pay to women on maternity leave, was not direct sex discrimination.

In the case of Capita Customer Management Ltd v Ali, the EAT overturned the Tribunal’s decision which had found sex discrimination on the basis that the claimant (who was planning to take shared parental leave) was entitled to compare himself with a woman taking maternity leave as they accepted that the main purpose of both types of leave is to care for the child.

In this case, female employees were entitled to maternity pay comprising 14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay (SMP). Male employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which ‘may or may not be paid’. After his daughter was born the claimant took two weeks’ paid leave. He was informed that he was eligible for shared parental leave (SPL) but would only be paid statutory shared parental pay (SPP). He accepted that during the two week compulsory maternity period that special treatment was justified for women. However, he argued that after that period, maternity leave was about care for a child in the same way as shared parental leave. Therefore there was no justification for the lower level of shared parental pay under section 13(6)(b) of the Equality Act 2010 (which provides that special treatment afforded to a woman in connection with pregnancy or childbirth does not give rise to direct sex discrimination against men). The Tribunal agreed and found that he was subject to sex discrimination.

In overturning the Tribunal’s decision, the EAT held that the purpose of shared parental leave is different to maternity leave. The main purpose of the Pregnant Workers Directive (which underpins UK legislation) is the health and wellbeing of the pregnant and birth mother, and provides for minimum of 14 weeks' maternity leave paid at least at the same level as statutory sick pay. The Parental Leave Directive is concerned with the care of the child and makes no provision for pay.

Therefore, the correct comparator for the claimant in this case was a woman on shared parental leave, and in this case she would have been treated equally in terms of leave and pay. In any event, the more favourable treatment given to women on maternity leave was rendered lawful by section 13(6)(b) of the Equality Act 2010.

Paula Bailey comments:

“This decision provides helpful clarification as there have been conflicting tribunal decisions on this issue. Employers who are still deciding whether to introduce enhanced shared parental pay which is comparable with enhanced maternity pay may want to “hold fire” for now. Another EAT decision is expected soon so it will be interesting to see if the same approach is taken.”