Is it sex discrimination to enhance pay for maternity leave but not for shared parental leave?

Direct discrimination? (no)

Following last year’s employment tribunal decision in Ali v Capita Customer Management Ltd that it was discriminatory on the grounds of sex not to enhance shared parental pay, the EAT has recently upheld the employer's appeal.

The EAT held that a 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. It found that a father taking shared parental leave was not in a comparable situation to a mother taking maternity leave. The primary purpose of statutory maternity leave and pay is the health and wellbeing of the mother. The purpose of shared parental leave is the care of the child. It was therefore, in the EAT's view, not appropriate for a man taking shared parental leave to be compared with a woman on maternity leave.

So, as far as direct sex discrimination is concerned, it is not discriminatory to pay a woman on maternity leave an enhanced rate of pay, but not a man taking shared parental leave. However, the position it is not quite as straightforward as this case might suggest.

Indirect discrimination? (perhaps)

The EAT has also now handed down its decision in the case of Hextall v Chief Constable of Leicestershire Police and another, in which the employment tribunal had decided in 2016 that it was not discriminatory (neither direct nor indirect) to pay enhanced maternity pay but only statutory pay for shared parental leave. It had similarly concluded that a man taking shared parental leave was not comparable to a woman taking maternity leave.

The EAT in Hextall was considering only whether enhanced pay for maternity leave was indirectly discriminatory against men. It has decided that the tribunal was wrong in its conclusion that men taking shared parental leave could never compare themselves with women on maternity leave. It has remitted the case to be reheard by a new tribunal. In the EAT's judgment, it considered that enhancing maternity pay but not shared parental pay is potentially indirectly discriminatory towards men. If this is found by the tribunal to be the case, it would then be open to the employer to show that the discriminatory treatment is objectively justified.

What now?

We are therefore still some way off a clear answer to the question of whether enhancing maternity pay is discriminatory towards men taking shared parental leave.

Employers who offer enhanced maternity pay but do not currently enhance shared parental pay can continue to do so for now, but should look out for further developments.

It may also be advisable for them to consider what reasons might potentially apply to justify their different policies relating to enhanced pay. Reasons might include, for example, the health and wellbeing of the mother and encouraging the retention of female staff. Whether these will succeed will partly depend on the nature of the employer’s workplace and the composition of the workforce.