Legal update: Pay differences between males on Shared Parental and females on Maternity Leave

An important decision has recently been made by the Court of Appeal in a long-running sex discrimination case.

This decision was on the question of whether a man on Shared Parental Leave had been discriminated against because he had only received the statutory rate of pay, whereas women within his organisation who were on Maternity Leave received an enhanced rate of pay.

This case is Ali v Capita Customer Management Ltd. It had already been heard by an Employment Tribunal in June 2017, where the Tribunal decided that Mr Ali had been discriminated against, and by the Employment Appeal Tribunal in April 2018, where the Employment Appeal Tribunal found that there was no sex discrimination.

It was heard by the Court of Appeal in May 2019, along with another case of Chief Constable of Leicestershire Police v Hextall.

The outcome and implications for employers

The Court of Appeal has now provided some important clarity for employers in its decision. It has found that:

• There was no direct sex discrimination, as a man on Shared Parental Leave is not comparable to a woman on Maternity Leave. This is because the woman is afforded special treatment for her health and well-being following childbirth. The two types of leave cannot just be equated to childcare.
• The correct comparator for a man on Shared Parental Leave was a woman on Shared Parental Leave, not a woman on Maternity Leave.
• Therefore, it is not discriminatory to provide enhanced Maternity Pay and statutory Shared Parental Leave Pay.

 

Citation’s advice

Following this argument, we believe it would also therefore be reasonable to pay a man on Paternity Leave only statutory Paternity Pay, but to pay enhanced payments to a woman on Maternity Leave. Again, this is because the woman on Maternity Leave is in a unique position with this special protection.

However, Mr Ali and Mr Hextall are seeking leave to appeal to the Supreme Court and as such, this may not be the end of the issue.

 

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