Many employers who enhance maternity pay have chosen not to mirror this for shared parental leave, pending clarity as to whether this could be direct or indirect sex discrimination. The EAT has now given its first rulings on the issue. In Capita v Ali, the EAT ruled that a failure to mirror enhanced maternity pay was not direct discrimination, at least where the enhancement is only for the first part of maternity leave (at least the first 14 weeks, possibly 26 weeks). In its view, the purpose of this part of maternity leave is to protect the health and wellbeing of the mother during pregnancy and following childbirth, and therefore this leave is not comparable to shared parental leave, the purpose of which is to care for the child.

The EAT did note that the purpose of maternity leave may change after this initial period, leaving open the possibility of direct discrimination claims where an employer enhances maternity pay for longer than 14 weeks (the period protected by the Pregnancy Workers Directive) or possibly 26 weeks (the period of ordinary maternity leave).

Indirect discrimination was not argued in Capita, but was raised in the similar case of Hextall v The Chief Constable of Leicestershire Police, where the tribunal dismissed claims of both direct and indirect discrimination. Only the indirect discrimination finding was appealed to the EAT. The EAT accepted that the relevant “PCP” (provision, criterion or practice) was the practice of paying only the statutory rate of pay for those taking shared parental leave, and ruled that the tribunal had erred in concluding that because the PCP applied to men and women equally, there could be no indirect discrimination. The tribunal had also erred in excluding women on maternity leave from the pool for considering whether fathers were disadvantaged by the PCP. The tribunal had not properly identified the disadvantage relied on, which the EAT formulated as the greater difficulty fathers would have taking leave to care for their child, given that they had no other choice than to take shared parental leave on reduced pay while mothers could choose instead to take maternity leave with a period of full pay. The EAT considered that the pool should include all employees with a present or future interest in taking leave to care for their newborn child. There were insufficient findings of fact to determine the appropriate size and composition of the pool, so the claim was remitted to be reheard by a fresh tribunal.