No, according to the Court of Appeal in Ali v Capita Customer Management Ltd; and Chief Constable of Leicestershire v Hextall. The Court decided that it was not discriminatory to enhance maternity pay while paying statutory shared parental pay, regardless of whether the claim was one of direct discrimination, equal pay or indirect discrimination.
- In Capita Customer Management Limited v Ali (April 2018) the Employment Appeal Tribunal (EAT) decided that there was no direct sex discrimination in offering enhanced maternity pay for 14 weeks but only statutory shared parental pay. In the context of direct discrimination, male employees cannot compare themselves with women on maternity leave.
- In Hextall v Chief Constable of Leicestershire Police (May 2018) the EAT decided that for the purposes of an indirect sex discrimination claim, men on shared parental leave can compare themselves to women on maternity leave.
- Both decisions were appealed and heard together in the Court of Appeal in May 2019.
Court of Appeal decision
The Court of Appeal overturned the EAT’s decision in Hextall but confirmed the Ali decision. It was not discriminatory to provide for enhanced maternity pay but only statutory shared parental pay. Pregnant women and new mothers on maternity leave cannot be compared with men on shared parental leave.
Men on shared parental leave cannot compare themselves with women on maternity leave as their circumstances are materially different. Maternity leave is for the health and safety of the mother following pregnancy and childbirth. Its purposes include helping women prepare and cope with the later stages of pregnancy; recuperate from the effects of pregnancy and childbirth; breastfeed; and bond with their newborn child. Shared parental leave is, by contrast, provided to enable parents to look after their child. The proper comparator for a man on shared parental leave is, therefore, a woman on shared parental leave (who in this case was paid the same rate).
Mr Ali argued that only the first two weeks of compulsory maternity leave are necessary to protect a mother’s health and wellbeing after childbirth; following that the leave is for childcare. The Court disagreed.
Mr Hextall’s indirect discrimination claim was re-characterised as an equal pay claim in the Court of Appeal. He argued that as he had less favourable terms and conditions than comparable female employees, the sex equality clause provided for in the Equality Act 2010 should operate to upgrade his terms. In this way, he argued, while on shared parental leave he should have the same rate of pay as a colleague taking maternity leave.
His argument did not succeed because of an exception to the sex equality clause provisions for women who are pregnant, who have given birth or who are breastfeeding. Enhanced maternity pay is covered by this exception and, as a result, there was no basis on which to bring an equal pay claim.
A claim can only be about direct/indirect discrimination or equal pay; it cannot be about both. Therefore, the indirect sex discrimination claim could not proceed.
However, the Court commented that even if the indirect discrimination claim had been allowed to proceed, it would have failed. Birth mothers could not be included in the pool for comparison as their circumstances are materially different to those of Mr Hextall (for the same reasons as applied in Mr Ali’s direct discrimination claim). Therefore, Mr Hextall would not have been able to establish a particular disadvantage for male employees when compared with women. Furthermore, even if he had been able to, it would have been justified as a proportionate means of achieving a legitimate aim (the special treatment of mothers in connection with pregnancy or childbirth).
Although many employers are taking steps to equalise family leave benefits, this decision provides comfort to those who choose to enhance maternity pay but not shared parental pay. Maternity leave and pay can be treated as a special case without risking sex discrimination claims.
This may not quite be the end of the road, however, as both Mr Ali and Mr Hextall are seeking permission to appeal to the Supreme Court.