Last summer the Court of Appeal ruled that an employer’s failure to enhance shared parental pay in the same way as enhanced maternity pay was not unlawful direct or indirect sex discrimination or unequal pay (see here). The Court considered that a woman on maternity leave was not in comparable circumstances to someone on shared parental leave, as the purpose of maternity leave was to provide special protection for the health and wellbeing of mothers in connection with pregnancy, childbirth and breastfeeding, whereas the purpose of shared parental leave is to facilitate childcare.

The Supreme Court has now refused permission to appeal the case, leaving the Court of Appeal’s judgment as the definitive position for the time being. Employers who choose only to enhance maternity pay will welcome this decision. However, the case concerned the first 14 weeks of maternity leave, and there remains the possibility of arguing that the nature of maternity leave changes after the first 14 or 26 weeks and therefore that enhancement beyond that point may yet be discriminatory. We also understand that the Employment Appeal Tribunal is to hear an appeal from another tribunal’s decision that Powys County Council’s failure to enhance shared parental pay was not discriminatory even though it enhanced adoption pay.

Employers may also want to consider that the limited statutory pay for shared parental leave has contributed to its low take-up, and unequal sharing of childcare responsibilities has in turn been seen as contributing to the gender pay gap. These issues are clearly on the Government’s agenda following last year’s consultation on possible reform to family-friendly leave, but it is yet to announce any changes.